Ohio HIPAA Preemptions Decision on Patient-Physician Privilege

Interesting HIPAA preemption appellate decision out of Ohio finding that the Ohio physician-patient privilege statute preempts HIPAA since it provides greater protection to patient privacy.

The decision in Grove v. Northeast Ohio Nephrology Associates (Ohio Ct. App., Nos. 22594, 22585, 12/26/2005), involved a malpractice claim for damages where the plaintiff was injured in a car accident by a patient who had just had dialysis treatment at the facility. The claim asserted that the dialysis provider was negligent in letting the patient drive following treatment and sought the non-party medical records of the patient. The dialysis provider objected to producing the records relying on Ohio's patient-physician privilege statute.

Most interesting out of this decision is the fact that the dialysis provider could have provided the information under HIPAA since a court order had been issued requiring the production of the information. The decision highlights that the court order exception allowing disclosure under HIPAA without patient authorization is not a mandatory provision. The HIPAA court order provision states that a provider "may" disclose protected health information pursuant to a court order -- but does not say must disclose.

For more information on the decision and summary analysis of the decision check out the HIPAA Blog. Thanks to the HIPAA Blog for the tip on this decision.

WV Supreme Court of Appeals: Rule Changes

The West Virginia Supreme Court of Appeals recently approved numerous amendments to various rules. Also the Court has made available for public comment other proposed rule changes.

Based on the information from the West Virginia Supreme Court website the following Rules have been amended:

• Amendments to Rules of Practice and Procedure for Family Court
• Amendments to Rule 26, Rules of Practice and Procedure for Domestic Violence Civil Proceedings
• Request for Comment on Proposed Addition to West Virginia Trial Court Rules (Rule 45 Preparation and Submission of Orders) (Note: public comment period ends January 30, 2006)
• Request for Comment on Proposed Amendment to Rule 14(b) of the Rules of Criminal Procedure (Note: public comment period ends January 30, 2006)
• Proposed Amendments to West Virginia Rules of Criminal Procedure for Magistrate Courts, Rules 5, 5.2 and 9 and Proposed Amendments to West Virginia Rules of Criminal Procedure Rule 40(a), (b) and (c)
• Amendment to State Bar Bylaws - ARticle III(A) Financial Responsibility Disclosure
• Amendment to State Bar Bylaw - Article II - Emeritus Attorneys' Pro Bono Participation Program

The Court also makes available various forms that lawyers might find useful in daily practice in West Virginia.

Philadelphia Inquirer - Editorial on HIPAA: A dose of bad medicine

Interesting editorial appearing in the January 6, 2006, edition of The Philadelphia Inquirer discussing the impact of pending litigation involving the "privacy rule" under HIPAA.

The editorial looks at ongoing litigation pending in federal court before the Third Circuit. The editorial brings back to the forefront one of the highly debated questions when the proposed privacy rule became final. The issue of whether patients should have the right to give consent for all releases of private health information vs. allowing the release of specific health information without obtaining consent. The final rule was modified removing the consent requirement and replacing it with a general rule that allows releases without prior consent in common situations where health information is needed by some third party (for those who understand HIPAA these are the "treatment, payment and health care operations" exceptions under HIPAA).

Thanks to Alan Goldberg via the American Health Lawyers Association Listserve you can also check out the Petition for Rehearing and Rehearing En Banc in Citizens for Health et al. v. Michael O. Leavitt, Secretary, U.S. Department of Health and Human Services.

West Virginia Ranks 3rd in Judicial Hellholes 2005 Report

West Virginia ranks 3rd on the American Tort Reform Association's "Judicial Hellholes 2005". Here is a correction to the summary of West Virginia after Ken Ward, Jr. at The Charleston Gazette, notified the ATRA of an error in the West Virginia section of the report.

According to the report here are the top 6:

1. Rio Grande Valley and Gulf Coast, Texas
2. Cook County, Illinois
3. West Virginia
4. Madison County, Illinois
5. St. Clair County, Illinois
6. South Florida

My favorite quotes about West Virginia appear on the second page of the report.

"West Virginia was a 'field of dreams' for plaintiffs' lawyers. We built it and they came."
West Virgina Judge Arthur Recht

"As long as I am allowed to redistribute wealth from out-of-state companies to in-state plaintiffs, I shall continue to do so."
Hon. Richard Neely

Thanks to InhouseBlog via the Association of Corporate Counsel for the tip on the new report.

RedOrbit Red Hot Blogs of the Day

Health Care Law Blog has been selected by RedOrbit as one of its Red Hot Blogs of the Day. Don't know how I was selected but I appreciate the recognition.

Here is a direct link to RedOrbit's Red Hot Blogs of the Day.

Here is an archive of RedOrbit's Red Hot Blogs of the Day.

Google 's Braille Logo

A topic from today's blogger-get-together was Google's use of braille for its logo. Here is the reason why -- courtesy of Scoble.

Charleston Area Bloggers

The Charleston Area Bloggers (not cloggers) met today at Taylor Books for coffee. Everyone enjoyed meeting each other. It was a diverse group of area bloggers from political blogger to IT blogger to health law blogger to photo blogger to random thoughts on a little bit of everything.

Below is a photo posted live at the event by Rick Lee of On Location With Rick Lee. Pictured from left to right are Will Stewart, Bill Gardner, Bob Coffield, Rick Lee and Stacey Abshire.

It was a bright spot in a day that was very somber for many West Virginians. A day that will be remembered by many West Virginians for years to come. Rick's photo tells the story better than any words. Some people in West Virginia got the first run of the Charleston Gazette and others got the second run.

Thoughts and prayers go out to the families and friends of the miners who lost their life and the citizens of Upshur County. Also a thanks to all West Virginian miners past and present that help to make the electricity that you and I take for granted. Everytime you turn on your computer remember where that power came from -- probably a miner in the United States.

Some interesting coal facts from the West Virginia Office of Miners', Health, Safety and Training.

• More than half of the nation's electricity is generated from coal.
• In West Virginia 99% of the generated electricity comes from coal.
• Coal provides the majority of electric power in 32 states.
• In the United States, the demand for electricity has increased 136% since 1970.
• National demand for electricity is expected to increase by another 24 percent by 2020.
• It has been estimated that 13 percent of the national power requirement is taken up by activities associated with computers and information technology.

Other posts about the event here and here.

Tags: miner, westvirginia, wv