Proposed Tennessee Legislation May Infringe on the Privacy of Medical Malpractice Victims

As a result of their injuries, medical malpractice victims often face a lifetime of pain and suffering, whether it be physical or emotional, as the result of the damage they suffered at the hands of a negligent health care professional. And now, a proposed piece of Tennessee legislation threatens to add to that suffering, and possibly infringe on the privacy of the victim, and may also make it harder for medical malpractice victims to prevail in their lawsuits.

If House Bill 2979 passes the Tennessee legislature, and is enacted into law, Tennesseans who file a medical malpractice suit against a doctor or healthcare facility could find themselves opening up their lifetime’s medical records to scrutiny. According to The Murfreesboro Post, House Bill 2979 is currently being considered by the state House Judiciary Committee. If it is passed, the bill would permit healthcare providers to give open access to the medical records of a victim of medical malpractice who files a claim in court.

The bill would supersede federal HIPAA laws and allow an attorney, representing a healthcare provider, to get access to a plaintiff’s lifetime of medical history, including any and all mental-health and past drug or alcohol-abuse treatments, whether or not the information pertains to the medical malpractice claim.

Attorney Matt Hardin, a partner with a Tennessee law firm, says that while the committee appears ready to pass the bill, there may be further issues ahead. According to Hardin, “I believe the bill is in violation of federal law because it effectively is less restrictive than what the federal law is. HIPAA was drafted to protect the privacy of patients. When looking at this issue I found that 34 other states currently have strong restrictions in place that don’t allow this type of communication.”

As reported by to The Murfreesboro Post, in addition to the open access to medical records, the proposed bill would allow a defendant’s attorney to interview a plaintiff’s doctor or healthcare provider outside the presence of the plaintiff or the plaintiff’s attorney. Hardin spoke against the bill during last week’s subcommittee hearing. He says laws are already in place that allow access to medical information on the advice of a judge, and that the bill as proposed is one-sided and benefits the defendant more than the victim.

Hardin emphasizes that privacy is the key issue. He goes on to state, “It’s our belief that privacy is one of the core beliefs of our Constitution, it’s also protected by this federal law, HIPAA. We don’t believe that defense lawyers should be able to speak to doctors without the patient or the patient’s lawyer being there.”

The proposed bill is sponsored by State Rep. Vance Dennis of Savannah, along with Collierville Sen. Brian Kelsey. The Tennessee Association for Justice publicly ridiculed the bill, saying that it was an outrageous invasion of privacy and that passage of the bill would simply give a defendant’s attorney a way to intimidate victims of medical negligence and abuse.

As a Georgia Attorney who regularly represents victims of medical malpractice, I agree with the stance taken by the Tennessee Association of Justice. It is my hope that this proposed bill, which is potentially very damaging to victims of medical malpractice victims, is not allowed to infringe on the rights of those victims.

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