No-Fault Arbitrator Finds No Right to Privacy in Claimant’s Medical Records

In the Matter of the Arbitration between Kingsway Orthopedic PC and

Liberty Mutual Insurance Co.

AAA Case No. 412009003445, AAA Assessment No. 17 991 04024 09 (Claim File No. LA2030097816970) (Laura A. Yantsos, Esq., arbitrator)

Edited by Lawrence N. Rogak

[Continuing] on the theme of whether HIPAA authorizations should be required in no-fault claims, this particular arbitration award is notable for certain language used by the arbitrator.

The treatment at issue was surgery of the right shoulder; the question was medical necessity and fee schedule.

“Among other things, the Respondent shows that the MRI findings are consistent with pre-existing pathology. The record also shows a pre-existing auto accident. Lastly, in the subject accident, there is no showing of any mechanism that would have caused right shoulder injury. Respondent doctor states that the record does not show that the condition was due to the accident.”

“The Applicant doctor records his findings made at the time of his medical evaluation. This evaluation report is made in the ordinary course of a doctor’s practice and is supposed to aid him in his care and treatment of his patient. Yet, this report notes that the patient’s personal history ‘does not meet HIPAA minimum necessity requirement for disclosure’ and her past medical history ‘does not meet HIPAA minimum necessity requirement for disclosure.'”

“What is such a statement supposed to mean? Did he ask his patient any questions about her personal history or past medical history, or is this a disclosure he does not wish to make to third parties, such as the Respondent? Does this statement pertain to both relevant and irrelevant medical facts about the assignor’s past medical history and personal history, or only to irrelevant facts?”

“If he did not ask his patient these questions because of some imagined right of privacy, how can a doctor properly evaluate his patient in order to treat him if he does not allow himself to hear or take into consideration in his own evaluation the patient’s relevant personal history and her relevant past medical history?”

“The Respondent doctor shows persuasively that this condition pre-existed the accident. The Applicant’s omissions in his report tend to confirm Respondent’s opinion, as they seem to be an artful way of concealing what may be relevant information. I find that Applicant’s omissions in his medical evaluation report would tend to confirm rather than contradict the Respondent’s findings and opinions. What inferences can be drawn from the Applicant’s non-disclosure. It is not clear from the aforesaid statement made in Applicant’s evaluation report whether he did not consider the assignor’s past medical history and personal history because of some kind of imagined ‘right to privacy’ which would not entitle even him to this information, or whether he will not disclose to third parties both relevant and irrelevant personal and past medical history because of such rights to privacy, or whether this statement is limited to not disclosing only irrelevant matters concerning her personal and past medical history.”

“A patient’s personal history and past medical history recorded by a doctor in the ordinary course of his medical practice are matters which form a part of his medical record, which are accessible to the Respondent and are not violative of the assignor’s rights under the law.”

“The credible submissions support the Respondent doctor’s opinion that the condition is not shown to establish a causally related medical necessity for the surgery.  The claim is denied.”

Comment:  Calling the right to privacy of medical records in a no-fault claim “imagined,” pretty much confirms that no HIPAA authorization is required.—Larry Rogak