Tuesday, July 24, 2012

GA Case Tests Medical Privacy

An interesting battle on medical privacy in workers' compensation claims is pending before the Georgia Supreme Court (oral argument was heard July 10), and the case serves up some interesting issues for consideration.

In Arby's Restaurant Group et al. v. McRae, No. S12G0714, claimant Laura McRae accidentally drank a cup of lye and suffered third-degree burns to her esophagus while at work six years ago.

An administrative law judge ordered claimant Laura McRae to allow attorneys for her employer to speak with her treating gastroenterologist and when McRae refused, the judge sanctioned her by removing her claim from the hearing calendar.

The State Board of Workers' Compensation Appellate Division upheld the judge's action, as did the superior court, but last December, a narrow majority of the Georgia Court of Appeals reversed.

The four-judge majority acknowledged that the Georgia's Workers' Compensation Act requires a claimant to waive her medical privacy to the extent that she places her medical condition at issue in a workers' compensation claim; however the justices concluded that this is not tantamount to allowing an employer "unbridled access to ex parte communications" with a claimant's treating physicians.

The state Supreme Court heard oral argument in the case on July 10 and numerous amicus briefs have also been filed including those by the Georgia Self-Insurers Association, Georgia Manufacturers Association, Georgia Poultry Federation, the Dougherty County School System, YKK (USA) Inc., the Georgia Association of Manufacturers, the Georgia Trial Lawyers Association and University of Georgia School of Law Professor Thomas Eaton.

While medical privacy in workers' compensation is a state by state issue, in my opinion there are distinct and incompatible issues when it comes to an employer's "need to know" and protection of an employee's basic rights.

Typically medical privacy issues will only arise in litigated settings where the employer is contesting some claim to benefits and usually this is related to indemnity. Sometimes, where the claimant has an injury claim that progressively inflates to claim other body parts than that originally injured will require more information, but more often than not the issue arises when a claim for temporary disability is exceeding a normal pattern or there is an issue of apportionment when it comes to permanent disability.

In those situations the employer does not need, nor should it have, wholesale medical information. The issues are distinct and can be well defined to protect one's medical privacy.

When the issue isn't a contest about benefits, then it is a return to work issue. Return to work comes in two flavors - the employee claiming an ability to return to work, and the employer claiming the employee can return to work but refuses to do so.

The latter issue is really about indemnity - already commented on in this post.

The former issue is nearly moot - if the employee presents documented evidence of ability to return to work then that should be sufficient.

In the case of McRae, the issue in fact IS all about indemnity. 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.

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.

Arby's attorneys have a perfectly reasonable method of obtaining the information they seek without jeopardizing McRae's rights to privacy or otherwise influencing the physician's opinion without due process and that is to take the physician's deposition with McRae's attorney present.

The Georgia appellate court got it right when it opined that "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 [Baker v. Wellstar Health Sys., 288 Ga. 336, 338(2) (703 S.E.2d 601) (2010)], 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."

I suspect the Supreme Court will err on the side of protecting the employee's privacy as well since the alternative method of obtaining this information, by deposition, is reasonable, is not extraordinarily expensive, provides due process protections to BOTH employee and employer and perhaps the most compelling reason, is testimony under oath that can be used as evidence.

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