bodily injury claims often end up in litigation, and on my desk, is that the claimants (and their attorneys) failed to provide the insurance company with sufficient records detailing their treatment. Frequently requests are sent that the claimant execute an authorization allowing the company to obtain medical records directly from the providers. However, the scope of these authorizations are often limited by claimants' attorneys to only records and/or providers related to the subject accident. Thus, legitimate inquiries into preexisting conditions are thwarted. Once a claim enters litigation, plaintiffs must disclose the medical records and bills that support their claims, but absent a local rule or practice dictating otherwise, records predating the subject accident are rarely produced. Thankfully, courts have almost universally upheld the idea that "parties are permitted to conduct full, aimed at obtaining material which will be relevant to the ultimate disposition of the case." courts as to whether a plaintiff can be compelled to provide a medical records authorization via Rules 34 and 37 of the Federal Rules of Civil Procedure. defense counsel to serve a subpoena for the records on the medical provider(s) pursuant to FRCP 45. Care must be taken to ensure the subpoena complies with the provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) which governs the disclosure and security of personal health information. Under 45 C.F.R. § 164.512(e)(1)(ii), a "covered entity" may disclose protected health information in the course of any judicial or administrative proceeding "in response to a subpoena, ... , that is not accompanied by an order of a court or administrative tribunal" so as long as the that the individual whose protected health information is being sought has received notice of the subpoena. The "satisfactory assurances" requirement is met where: assurances from a party seeking protected health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that: faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address); proceeding in which the protected and their insureds in bad faith, auto accidents, premises liability, products liability and construction defect (subcontractor) cases. 3890 West Ann Road Las Vegas, Nevada 89031 702.870.3950 Fax barronpruitt.com |