Personal Injury Law Update

HIPAA Bars Defense Attorney From Interviewing Doctors in Medical Malpractice Action

A defense attorney has violated rules of the Health Insurance Portability and Accountability Act (HIPAA), ruled the Georgia Supreme Court. The defense attorney had ex parte communications with the plaintiff's prior treating physician. The defense lawyer informally asked about the patient's medical condition after getting his medical records from three previous doctors. The doctor has been sued for malpractice.

When a plaintiff puts his or her medical condition at issue, the defense attorney can contact treating physicians about the plaintiff's condition. The court agreed with the plaintiff in this case when he argued that the defense attorney violated HIPAA's provisions requiring notice and consent from the patient before the medical records are disclosed.

The Supreme Court of Georgia stated as follows in Moreland v. Austin:

"[W}e find that HIPAA preempts [state] law with regard to ex parte communications between defense counsel and plaintiff's prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians. ...

"HIPAA ... prevents a medical provider from disseminating a patient's medical information, whether orally or in writing, without obtaining a court order or the patient's express consent. In other words, HIPAA requires a physician to protect a patient's health information, unless the patient is given reasonable notice and an opportunity to object. ...

"Thus, in order for defense counsel to informally interview plaintiff's treating physicians, they must first obtain a valid authorization, or a protective order, or ensure that the patient has been given notice and an opportunity to object to the ex parte contact, all in compliance with the requirements of HIPAA," the court said.

United States Supreme Court to Review Punitive Damage Award Against Philip Morris in Oregon Smoker Case for Third Time

We previously blogged about the decision of the Supreme Court of the United States in Philip Morris v. Williams addressing the propriety of a $79.5M punitive damage award to the family of a long-time Oregon smoker. Procedurally, the U.S. Supreme Court's earlier decision remanded the case back to the Oregon Supreme Court to reconsider and reassess its earlier holding that due process did not require a trial court to give a particular proposed jury instruction requested by the defendant; namely, to instruct the jury that it was NOT to use an award of punitive damages to punish a defendant for harms to persons who were not parties to the litigation.

On January 31, 2008, the Oregon Supreme Court issued a new opinion reconsidering and reassessing the issue posed by the U.S. Supreme Court, and concluded that the proposed jury instruction proposed by the defendant was flawed for other reasons that it did not identify in its earlier opinion. It therefore reaffirmed its prior conclusion that the trial court did not err in refusing to give the instruction.

Last week, the U.S. Supreme Court announced that it will review the $79.5 million punitive damages judgment against Philip Morris for the third time. This time around, the justices will consider only whether the Oregon Supreme Court in essence ignored the Court's earlier ruling, not whether the amount of the judgment is constitutionally permissible.

Arguments are scheduled for the fall. We will keep our readers apprised of new developments in the case.

Oregon Legislative Panel Formed to Consider Tort Law Overhaul After Clarke v. OHSU Decision of the Oregon Supreme Court

At the end of May it was reported that the Oregon State Legislature had appointed a special bipartisan panel (consisting of 10 lawmakers and various stakeholder groups, including local governments and the Oregon Trial Lawyers Association) to examine Oregon's tort laws and propose reforms. Among the issues the panel is expected to tackle are questions of separating medical malpractice from other claims, adjusting award caps for inflation, economic versus non-economic damages, and establishing a procedural mechanism for challenging caps.

In particular, the panel is also expected to propose a legislative response to the December 2007 decision in Clarke v. Oregon Health Sciences University, in which the Oregon Supreme Court ruled that while the defendant ("OHSU"), a major public teaching hospital in Portland, was protected by the statutory liability cap of $200,000 in medical malpractice cases, the cap did not extend to employees of the hospital. Since another state law requires public institutions to pay damages won against their employees, the decision effectively nullified the cap (in Clarke, the damages alleged exceeded $17 million).

Describing the objectives of the legislative panel in light of Clarke, State Senator Suzanne Bonamici explained: "We need to protect the rights of people who are injured, but at the same time address the concerns of the governmental entities that are not only facing economic hardship but also accustomed to having some amount of protection from the tort claim statute."

Oregon Medical Malpractice Statute of Limitations Upheld

Last week, the Oregon Supreme Court upheld a five-year statute of limitations on medical malpractice lawsuits involving minors. The case involved a woman who sued Providence Health System, claiming its doctor did not recognize signs of fetal distress when her son was being born and failed to perform an emergency Caesarean section. However, the suit was commenced eight years after the boy was born - beyond the five year statute of limitations. See stories in the media here and here.

A copy of the opinion can be viewed on the website of the Oregon Supreme Court.

Medical malpractice claims are typically complex, expensive and difficult cases. Because of the difficulty of these cases, it is vitally important to thoroughly investigate and speak to an experienced medical malpractice attorney as soon as you believe you may have a claim. The Oregon medical malpractice lawyers at D'Amore & Associates offer free consultations to review the facts of your case.

The Supreme Court Punitive Damages Decision in Philip Morris - Good for Plaintiffs?

On its face, the United States Supreme Court's Philip Morris v. Williams decision earlier this year tossing out a $79.5M punitive damage award in an Oregon smoking case where the compensatory damages were $821,000, was seen as a victory for big business in limiting punitive damage awards.

However, New York personal injury lawyer, Eric Turkewitz takes a contrarian view, and argues persuasively in his blog that the dissent of Justice Stevens in the Philip Morris case suggests that high punitive damage multipliers will be allowed in future cases.