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Tennesseans' Medical Records at Risk of Being Opened Under Proposed Law

March 27, 2012

NASHVILLE, Tenn. - If you live in Tennessee and file a medical malpractice suit against a doctor or health-care facility, you could find yourself opening your lifetime's medical records under a new proposed law. House Bill 2979 will be considered by the state House Judiciary Committee today. If it's passed, the bill would permit health-care 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 health-care 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 the firm Rudy, Wood, Winstead, Williams and Hardin, says that, while the committee appears ready to pass the bill, there may be further issues ahead.

"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."

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 health-care provider outside the presence of the claimant or the claimant'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.

"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."

State Representative Vance Dennis of Savannah is the bill's sponsor, along with Collierville Senator 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.

Bo Bradshaw, Public News Service - TN