The Daily

Do Qualified Protective Orders Maintain the Privacy of PHI Related to the Claim?

I advise my clients that the pursuit of a medical malpractice claim involves waiving the privacy and confidentiality of the medical issues related to the claim. I think that is customary advice in the legal community.

Trying to parse out what may remain confidential, whether you have a “qualified protective order” or not, is an interesting but unclear area.

Doe’s lawyer explained that the primary caselaw relied on by the defendants, a 1985 Illinois Supreme Court case, Novak v. Rothnam, was inapplicable because in Novak, a psychiatrist testifying at a criminal trial waived the confidentiality of that information. His client’s information was subject to a qualified protective order under the Health Insurance Portability and Accountability Act of 1996, Paris told the justices.

“There was a qualified protective order in this case that made very clear the limits of waiver,” he said. “Here, we have a qualified protective order that says [the waiver is] for the litigation. … The statements that [the firm made] were made outside of court, outside the litigation.”

Read more at: