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The office staff of Medical Justice member received an unexpected call the other day. A lawyer said he represented the estate of the practice’s recently deceased patient.  The lawyer just wanted to ask the doctor a few questions. No other context. Zip. Nada.

First, a doctor cannot just speak with a lawyer who just happens to call and conform to HIPAA. He would need written verification the doctor can disclose protected health information to the attorney. And HIPAA survives death. So, the fact that the patient is dead changes little.  There are exceptions to needing a HIPAA compliant authorization. But, unless you know the context of the reason for the discussion, they don’t apply.

Who could authorize such disclosure? The executor of the estate. So, you’d need to see a signature from the executor.

  1. Assume the paperwork is in order. What then?

I still don’t see the upside of a free form conversation with this attorney. Perhaps he’s fishing for information to decide whether to sue another doctor. Or to sue you. In that case, you’re unlikely to “talk him out of it.” But, you may just talk him into it.

If the attorney is trying decide whether to sue and who should be sued, he needs to make that determination the old fashioned way. Get the medical records and have an expert review the chart.

If the attorney still wants your story as a treating doctor, he can depose you if and when a party is actually sued. Everything would be on the record. And you could ask your professional liability carrier whether they can send an attorney to sit next to you during the deposition . If you’re a defendant, you carrier will obviously supply an attorney.

So, there you have it. Don’t set yourself up to become an easy defendant. Any such conversation should be done by the book- and formally.

What do you think?


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