Storm Clouds Over 440.13(4)(c)?
[U]pon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury.
Prior to implementation of this statute, an EC was forbidden from speaking to an authorized treating provider without first providing notice to the claimant and providing the claimant the opportunity to appear. This statute allows a representative of the EC, including nurse case managers and defense counsel, to privately meet with authorized treating providers to discuss the injury, treatment, and prognosis. So long as the discussion is, “restricted to conditions relating to the workplace injury,” all aspects of care and treatment being provided to the claimant are fair game.
A recent case from the United States District Court from the Northern District of Florida may, however, result in litigation over the viability of section 440.13(4)(c). Murphy v. Dulay, 2013 WL 5498140. In this medical malpractice action, the plaintiff contested a provision of the Florida medical malpractice law that is similar to the workers’ compensation statute cited above. In order to comply with pre-suit requirements in a medical malpractice case, the plaintiff was obliged to sign a release that would enable the defendant physician to have ex parte communications with the plaintiff’s other doctors without the plaintiff having any knowledge of such conferences. For example, if the plaintiff intended to sue his treating orthopedic surgeon for medical malpractice, he was required to sign a release that would enable his orthopedic surgeon to speak with his primary care provider, his treating neurologist, or any other physicians who have treated him. This statute took effect on July 1, 2013.
The plaintiff claimed that this statute was in violation of HIPAA, and that the Florida statute compelling him to sign the release could not contradict the federal HIPAA statute. The court agreed with the plaintiff and struck that portion of the Florida medical malpractice statute that compelled him to sign the release. The court held that the Florida medical malpractice statute cannot, “authorize a healthcare provider to disclose health information about the patient in an ex parte interview (that is, in an interview when the patient or the patient’s attorney is not present).”
Although distinctions can be drawn between the parties involved in a medical malpractice action and the parties involved in a workers’ compensation claim, the basic issue in the Murphy opinion of September 25, 2013 is very similar to the ex parte communication authorized by section 440.13(4)(c). If an injured worker brings a similar lawsuit claiming that the Workers’ Compensation Law is in violation of HIPAA, he may be successful in using Murphy to strike section 440.13(4)(c), potentially barring ex parte communications with authorized treating providers. Given the increasing volume of civil litigation attacking various aspects of the current Workers’ Compensation Law, it would not be surprising to see a civil lawsuit attempting to strike the viability of 440.13(4)(c) as being in violation of HIPAA, as explained in the Murphy opinion. This could result in employer/carriers losing the ability to speak confidentially with an injured worker’s treating providers.