Can I still Speak With the Doctor?

by Chuck Dubose, Esq.

During the course of a workers' compensation claim communication with the claimant's treating physician is crucial in order to obtain essential information concerning the claimant's current condition, work status, treatment recommendations, and any opinions concerning permanent impairment. Such communication is important for the employer, insurer and defense counsel in order to effectively manage the claim. Lately, however, there has been more resistance with regard to such communications.
The Georgia Supreme Court recently addressed the issue of communications with medical providers in the case of Baker v. Wellstar Health Systems, Inc., S10A0994 (June 1, 2010). This case is apparently being circulated by claimants’ attorneys who assert that communications between defense attorneys and treating physicians (so-called ex parte communications) should be prohibited.
Baker is not a workers’ compensation case, but stems from a medical malpractice action. It highlights the privacy issues involved with respect to a plaintiff’s medical information and it specifically addresses communications between defense counsel and a plaintiff’s health care providers. In Baker, the Georgia Supreme Court held that communications between defense counsel and treating physicians may be conducted as long as the parties comply with the requirements of HIPAA (Health Insurance Portability and Accountability Act of 1996). HIPAA contains provisions which include obtaining consent of the patient and also include a protective order for otherwise protected health information. However, HIPAA does not apply to workers’ compensation claims. It states that providers "may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related injuries or illness without regard to fault.

O.C.G.A. § 34-9-207 of the Georgia Workers' Compensation Act provides that once an employee files a workers’ compensation claim or receives income medical benefits, "that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists." Consequently, Baker should not be read to have any impact on the ability to communicate with treating physicians in workers’ compensation claims. However, this is a developing issue. Other states have addressed this differently and have imposed more restrictions on the ability to communicate with treating physicians. We will monitor the situation and provide updated information as it becomes available.

If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or at david.willis@davidandrosetti.com.