Medical Records, Privacy Rights and Workers’ Compensation Claims

As an attorney located in New Jersey representing injured workers, I struggle with the ethical dilemma of balancing my clients right to privacy and the workers’ compensation carriers right to obtain medical discovery. The injured workers right to confidentiality in medical treatment records is waived in part when they make a claim for physical or mental injuries arising out a work injury in several ways.  It is clear that the workers’ compensation carrier and/or their attorney is entitled to copies of treatment records for treatment arising out of a work injury.  However it is also clear that the carrier is NOT entitled to records for treatment for unrelated conditions.  Since in New Jersey a workers’ compensation carrier is entitled to a credit against any permanency award if an injured worker has a pre-existing disability to the same part of the body injured in the work accident, carriers are entitled to records for related prior treatment.  This does not mean that the carrier is entitled to all prior records for any medical condition. We routinely receive requests asking our clients to sign medical authorizations so the attorney for the workers’ compensation carriers can obtain the injured workers family doctors records for the past 10 years.  We routinely say “NO” to these open-ended requests.  We only allow our clients to sign medical authorizations for records that have a reasonable relationship to the current work related injury.  Of course this does include any records for treatment of a prior condition to the same part of the body, no matter when the prior treatment occurred. And of course the attorney for the carrier must comply with HIPPA laws. HIPPA is short for the Health Insurance Portability and Accountability Act and can be found at 42 U.S.C. Section 1301. HIPPA regulates how medical providers respond to requests for medical records, how information is shared with others and how the information is used.  Some common HIPPA violations include the following:

• Failure to comply with the stated expiration date – You should always set a date when the authorization expires. A medical provider would be committing a violation by releasing medical records for treatment after that date.
• Failure to promptly release information to patients – According to HIPAA, a patient has the right to receive electronic copies of medical records on demand, and written records are supposed to be provided within 30 days.
• Improper disposal of patient records – Shred medical records, don’t just put them in the trash!
• Insider snooping – This refers to co-workers or family members looking at a persons medical records without authorization.
• Missing patient signature – Any HIPAA form that is not signed by the patient is NOT valid.
• Releasing information to an undesignated party – Only the person listed on the authorization form may receive patient information.
• Releasing unauthorized health information – A patient has the right to release only parts of their medical record, and should be careful to specify which records they want disclosed.
• Releasing wrong patient’s information – Through a careless mistake a provider releases records for the wrong patient.

At Stark & Stark, we advise our workers’ compensation clients about when they should, and when they should not, disclose their private medical information in the course of our representation.  For any questions about your workers’ compensation issues please give us a call.