Does HIPPA Prevent a Medical Expert Witness from Reviewing and Discussing Medical Records?

By Kelly Wilbur, Esq.

One of the main components of expert witness assignments, when a plaintiff’s medical condition or status is involved, is reviewing medical records. This often begs the question, does HIPPA permit the disclosure of such records so the records may be reviewed by the expert witness? The short answer is YES.

The Health Insurance Portability and Accountability Act of 1996 (HIPPA) states, a covered entity may use or disclose protected health information as permitted or required by the Privacy Rule, see 45 CFR 164.502(a); and, subject to certain conditions the Rule typically permits uses and disclosures for litigation, whether for judicial or administrative proceedings, under particular provisions for judicial and administrative proceedings set forth at 45 CFR 164.512(e), or as part of the covered entity’s health care operations, 45 CFR 164.506(a).

Additionally, a covered entity’s use or disclosure of protected health information in the course of litigation also may be permitted under a number of other provisions of the Rule, including uses or disclosures that are:

required by law (as when the court has ordered certain disclosures),
for a proceeding before a health oversight agency (as in a contested licensing revocation),
for payment purposes (as in a collection action on an unpaid claim), or
with the individual’s written authorization.

Where the covered entity is not a party to the proceeding, the covered entity may disclose protected health information for the litigation in response to a court order, subpoena, discovery request, or other lawful process, provided the applicable requirements of 45 CFR 164.512(e) for disclosures for judicial and administrative proceedings are met.

When a covered entity is a party to a legal proceeding, such as a plaintiff or defendant, the covered entity may use or disclose protected health information for purposes of the litigation as part of its health care operations.[1] For example, a covered entity that is a defendant in a malpractice action or a plaintiff in a suit to obtain payment may use or disclose protected health information for such litigation as part of its health care operations. The covered entity, however, must make reasonable efforts to limit such uses and disclosures to the minimum necessary to accomplish the intended purpose.[2]

Essentially, HIPPA allows disclosure of protected health information in the context of litigation and other judicial and administrative proceedings. Expert witnesses may receive medical records to review in the context of litigation.

[1] The definition of “health care operations” includes a covered entity’s activities of conducting or arranging for legal services to the extent such activities are related to the covered entity’s covered functions (i.e., those functions that make the entity a health plan, health care provider, or health care clearinghouse), including legal services related to an entity’s treatment or payment functions.

[2] See 45 CFR 164.502(b) , 164.514(d).

About the Author

Kelly J. Wilbur, Esq., is a Trainer and Consultant for SEAK, Inc – The Expert Witness Training Company. She was an insurance defense and commercial litigator for five years prior to joining SEAK. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law in 2015 and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. While at St. Mary’s, Kelly was a member of the nationally ranked varsity sailing team and was a two-time All American. Kelly has taught, trained, and consulted with hundreds of expert witnesses and is the co-author of SEAK’s 2021 Survey of Expert Witness Fees. Direct Dial: 781-491-6802 Email: kelly@seak.com www.seak.com www.seakexperts.com