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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Personal Injury Law
Satisfied Customers: 118787
Experience:  Licensed Attorney. Over 20 years experience in personal injury and law enforcement.
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I was involved in a civil law suit over a car accident and

Customer Question

I was involved in a civil law suit over a car accident and the other party's attorney disclosed part of my medical history in court in front of the jury. I had signed a release for my family doctor but not for this other doctor that I had not seen in years.
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, it is not illegal for the attorney to disclose the records in court. It is how the attorney obtained the records and if the attorney obtained those records illegally without your consent or without a court subpoena then you would be able to sue the doctor who released the information for breach of his duty of confidentiality under state law and file a HIPAA complaint with the US Department of Health and Human Services (as there is no private right to sue under HIPAA you have to sue under state law).
Also, at the time this was done in court, you had to object to it and if you did not object and preserve the objection on the record, then you could not use that as a basis for appeal. However, again, if the records were improperly released by the doctor without your written authorization or a court subpoena, you can sue the doctor for breach of his duty of confidentiality and seek damages and file the DHHS complaint.
Customer: replied 1 year ago.
I have talked to the Records Office of the doctor and there was no release nor had my records been requested. This was specific information and not just a stab in the dark. I did not have a chance to object to it since it was during closing arguments. This information could not have been obtained legally, what can I do about it?
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You would have to find out who released them. If the doctor is saying they did not release them, you have to find out who did, because if the attorney received them and the attorney did not do anything improper to get them, the attorney can use them and the attorney is not liable.
You have to find out how they got them before you know your recourse I am afraid.
You could object to the closing arguments as well. However, it is imperative you find out how they got them to know if there is some right to sue the person who disclosed them since confidentiality of medical records laws apply to healthcare providers and insurers, nobody else, just like HIPAA.
Customer: replied 1 year ago.
I hope I'm not getting on your nerves but it seems to me since there is no release signed by me then the records were obtained illegally. The only proof that my rights were violated is this attorney having my information. I have already checked with the doctor and they have neither a request nor a release.Since the jury was tainted by this illegally obtained information can I request a new trial? I asked my attorney about this right away and he told me that since I had signed a release for my family doctor the judge sometimes allows to go back further than the date on the release. I don't believe this, I can't imagine a judge saying that an attorney can use a release signed for a certain physician for a certain timeframe to obtain medical records for a different doctor, going back several years.
Customer: replied 1 year ago.
I probably should have said this from the beginning: I was in a car accident and the other person was at fault. I had been in psychiatric care for chronic depression and PTSD but my last visit to the shrink predated the accident by several years.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
You are not getting on my nerves at all.
The issue is that as long as the attorney did not come by them or cause them to be obtained illegally or know they were illegally obtained the attorney is in the clear.
If your release did not specifically state "Only records from Date X to Date Y" or "Only records related to Z injury" then that release could be used for any record. HOWEVER, if the release was only to ONE doctor specifically, your attorney is wrong in that no other doctor can use that release to release records.
Also, what most people do not realize is that while medical records are confidential, the state medical records confidentiality laws and HIPAA only apply to certain individuals and they are called "covered entities" and those covered entities are healthcare providers and healthcare insurers or their agents (those who work for either). So if anyone else got the records somehow, they are not violating any law. The party who released the records if they are a healthcare provider or insurer would have violated the law and they would be the one who would be sued.
So you have to find out WHO released those records and how the attorney got them, that is what you need to do if you want to take action and sue anyone, because if any doctor or insurer released them without your authorization, then that is who you would sue.