[ Wednesday, January 11, 2006 ]


Ohio Preemption Case: Interesting appellate court case in Ohio I just heard about, ruling that the Ohio physician-patient privilege statute preempts HIPAA, by virtue of being more stringent in protecting patient privacy. In the case, Grove v. Northeast Ohio Nephrology Associates (Ohio Ct. App., Nos. 22594, 22585, 12/26/05), Grove was hurt in an car crash when Carmella Pleli lost control of her car after receiving dialysis from NONA. Grove's lawyers sought Pleli's medical records from NONA, along with information on the treatment provided by NONA to Pleli. (Grove had already settled with Pleli at this time, and was now going after NONA as a deeper pocket, arguing that NONA committed malpractice letting Pleli drive and that is what injured Grove.) NONA objected that all the information requested was protected by the physician-patient privilege. The lower court ruled that the medical record was protected, but that NONA was required to describe the treatment given to Pleli. NONA appealed that ruling, and the appellate court ruled that both sets of information were protected under the Ohio physician-patient privilege.

After taking care of a couple of technical issues (including a determination that, while the physician-patient privilege is the patient's to exercise or waive, the physician can assert it where appropriate), the court determined that the privilege was broad enough to include information about the treatments provided, and that none of the statutory exceptions to the privilege applied (that is, the patient didn't waive the privilege, it wasn't a claim filed by the patient, it wasn't a will contest, etc.). Therefore, the lower court was right to exclude the medical record, but should also have refused to require NONA to provide information on the treatment provided to Pleli.

The court also takes the opportunity to look at the Ohio statutory physician-patient privilege as it relates to the HIPAA preemption provisions. HIPAA preempts contrary state law, but does not preempt state law that (i) deals with medical record privacy and (ii) is more stringent -- i.e., more protective -- in providing for confidentiality. The Ohio statute is more stringent, and therefore is not preempted.

On first blush, NONA could have provided the information without appealing the lower-court ruling and clearly would not have violated HIPAA (since HIPAA specifically allows disclosures pursuant to a court order). However, NONA had a statutory duty (and an ethical one as well) to prevent disclosure of patient information wherever possible, and its appeal was warranted, and perhaps even required, by state law.

Jeff [10:52 AM]

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