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A Medical Record Privilege Log in PA?

October 13, 2011

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The way in which Pennsylvania courts, attorneys and medical providers deal with medical record subpoenas never ceases to surprise. Take, for example, the fact that many PA medical providers provide records (in response to a subpoena) without ever seeing a HIPAA compliant authorization. And it is ever difficult to get HIPAA complaint authorizations from plaintiffs since, unlike in many jurisdictions, the authorizations are not provided with the initial discovery response. But in the rare cases where the plaintiff is not providing the authorization and the medical provider is, in fact, complying with federal law, what's a defense attorney to do? The usual answer is provide the plaintiff with blank authorizations and ask him to fill them out. This practice has been called into question in the case of [i]Beaston v. Benaknin[/i], a Lebanon County trial court decision. In its decision, the court wrote that "plaintiff should be able to maintain confidentiality regarding medical records irrelevant to the current litigation" but added that the "plaintiff must identify all withheld documents along with a reason for why he or she is withholding those documents." In other words , plaintiffs do not have to supply a blanket authorization, but they do have to supply a medical record privilege log. Good luck getting that from a typical plaintiff's attorney.
For more information about this post or WCM's PA practice, please contact Bob Cosgrove at <a href="mailto:rcosgrove@wcmlaw.com">rcosgrove@wcmlaw.com</a>.

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