November 12, 2015

QUESTION:         Our hospital recently received a discovery request (a request for production of documents) in a malpractice suit brought against one of the physicians practicing at our hospital. The request seeks documents which contain protected health information (“PHI”), as that term is defined by the Health Insurance Portability and Accountability Act (“HIPAA”). Should we respond by producing the documents?

ANSWER:           This is a question that can best be answered by your attorneys and should be referred to them for an answer because the answer may depend on a number of variables, such as whether the information is protected by your state’s peer review privilege or some other evidentiary privilege. Nonetheless, assuming no privilege applies and that the information is otherwise discoverable, PHI under HIPAA may only be disclosed under certain circumstances. In litigation, disclosures of PHI are often made pursuant to a “qualified protective order.” A covered entity may disclose PHI if it “receives satisfactory assurance…from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order….” At a minimum, the qualified protective order must prohibit the parties from using or disclosing the PHI for any purpose other than the litigation and require the return to the covered entity or destruction of the PHI, and any copies made, at the end of the litigation. If a qualified protective order that meets HIPAA requirements is in place and the documents are not otherwise privileged or protected, it may be appropriate to provide the documents.  Of course, your hospital may also provide PHI that is sought in discovery after it is de-identified according to the requirements of HIPAA. Disclosure of de-identified health information may be appropriate if the discovery request does not seek health information that is tied to a particular individual and does not cover a large number of documents.