Friday, June 8, 2012

Medical Privacy Test in GA

A Georgia case highlights what I think is an interesting debate of medical privacy in the context of workers' compensation.

On Wednesday several amicus briefs were lodged with the Georgia Supreme Court on behalf of the Georgia Self-Insurer's Association, Georgia Manufacturer's Association and Georgia Poultry Federation urging the high court to reinstate a State Board of Workers' Compensation's decision which held that an injured worker could be forced to authorize her doctor to communicate with her employer regardless of whether the injured worker participated in the communication or not.

Georgia's Workers' Compensation Act requires a claimant to give the employer a release, directed to a particular provider, for "medical records and information" related to the claim, in furtherance of the system's overall goal of expediting the resolution of claims.

Last December, a four-judge majority of the state's appellate court concluded that this provision required an injured worker to waive her right to privacy in "tangible documentation" related to the medical condition forming the basis of her claim.

The amicus group say the State Board of Workers' Compensation had construed this language more liberally, and that the court "should have given them deference."

The 2011 case from which appeal to the Supreme Court was taken is McRae vs. Arby's Restaurant Group, A11A1021 (2011).

In the case Laura McRae suffered third-degree burns to her esophagus at work after mistakenly drinking lye that had been left in the break room in a cup similar to the one she had been using. Her employer, Arby's Restaurant Group, Inc., did not controvert McRae's workers' compensation claim and began paying income benefits in March 2006. McRae signed a Form WC 207, authorizing and consenting to the release of her medical information, which expired in 90 days, until any pending hearing, or until revoked in writing.

In September 2009, McRae's treating gastroenterologist prepared a medical narrative report in which the physician concluded that, despite exhaustive therapy, McRae had reached maximum medical improvement and had a 65 percent permanent body impairment. In October 2009 McRae requested a hearing on her claim for temporary total disability and permanent partial disability, which was initially set for October 20, 2009, then reset to December 17, 2009, and again to February 24, 2010.

After receiving the report, Arby's attorneys tried to schedule an ex parte consultation with the treating physician, but the physician declined to meet with them absent express permission from her patient. The attorneys then moved the ALJ to remove McRae's hearing from the calendar or issue an order authorizing the treating physician to talk to them outside the presence of McRae or her attorney. The ALJ ordered McRae to expressly authorize her physician to speak with counsel for her employer, and denied McRae's request for a certificate of immediate review by the Appellate Division. In denying the request, the ALJ concluded that McRae could informally contact the treating physician herself and inquire about any communications made between [the physician] and the Employer/Insurer.

McRae did not sign a release authorizing her treating physician to communicate with Arby's representatives without her presence, and the ALJ sanctioned her by removing her claim from the active hearing calendar until she did so. The Appellate Division of the Board affirmed, and McRae then sought judicial review in superior court, which likewise upheld the decision of the ALJ.

McRae appealed from the judgment of the superior court and argued that the Act does not compel her to authorize her treating physician to communicate ex parte with representatives of her employer, and that her right to medical privacy is protected by both Georgia law and the Privacy Rule of the Health Insurance Portability and Accountability Act ( HIPAA ).

The appellate court relied on a Georgia Supreme Court case, Baker v. Wellstar Health Sys., 288 Ga. 336, 338(2) (703 S.E.2d 601) (2010) which held that while a litigant waives her right to medical privacy to the extent that she places her medical condition at issue, as set forth in OCGA § 24 9 40(a), that waiver is limited to information related to the injury at issue in the litigation and any related medical history and that ex parte communications between a litigant's treating physician and opposing counsel should be limited.

Baker involved a medical malpractice case but the appellate court ruled that for ex parte communications purposes there is no difference with workers' compensation.

The court concluded: "Therefore, while the Act requires an employee to authorize her treating physician to release relevant medical records and information, it does not require an employee to authorize her treating physician to communicate ex parte with the employer's lawyers in order to continue receiving benefits. Giving the employer's counsel unbridled access to ex parte communications with an employee's treating physicians would create numerous potential dangers, as noted in Baker, among them the potential to influence the physician's testimony, to probe into irrelevant but highly prejudicial matters, and the disclosure of information never disclosed to the patient."

Medical privacy is indeed a "moving target" in workers' compensation proceedings because it is the employer and not the patient who has a financial interest in the outcome of the injured worker's health (in terms of payment obligation - yes, you could argue that the injured worker has a financial interest to the extent that they RECEIVE indemnity, but ultimately it is the employer who pays and whose premium for years is affected by that obligation).

But the employer should not be entitled to wholesale information about an injured workers' medical issues.

The McRae case really has a very narrow ruling: "because a claimant is not required by our Workers' Compensation Act to authorize her treating physician to talk to her employer's lawyer ex parte in exchange for receiving benefits for a compensable injury, and because a claimant retains a right to medical privacy as to matters unrelated to her claim, we reverse the superior court's order to the contrary."

I see this as consistent with the intent and merit of workers' compensation and medical privacy laws. And I don't see why any communication necessarily has to be ex parte. Perhaps it may be more convenient and efficient for an employer to do so, but the risk of disclosure of non-relevant information is too great, and the temptation of an employer to seek such information can cause an imbalance in ethical application.

The Georgia appellate court got this issue right.


  1. David,

    I know many attorneys representing injured workers in California believe their clients have a right to privacy as to their treating physicians vs their claims adjusters. The truth is virtually ALL W/C claims offices have persons whose major job duties involve calling treating doctors to obtain disability status reports and to discuss the claim.

    One attorney said he would not "allow" a treating doctor to communicate with his client's w/c claims adjuster. He did not believe me when I told him it was commonplace, no "permission" was required, and in fact physicians must report to employers &/or insurance companies, e.g., L.C. 4609.

    However, Labor Code Sec. 3762 does limit the information the physician may disclose to the employer.

  2. Thanks for the comment Stew - I think the issue was whether there could be wholesale disclosure of medical information, with the fear that some thing that had nothing to do with the work injury would be disclosed. I do see that as a valid issue. In comment in a different forum it was noted that in some states medical records are the property of the physician and it is up to the physician's discretion whether to share...