SB 3, effective in all cases on 2/16/05, requires that the plaintiff in a medical malpractice case provide with the complaint a signed authorization for defense counsel to obtain all protected health information in medeical records, and to have ex parte discussions with all of the plaintiff’s (or plaintiff’s decedent’s) treating physicians.
This section may violate the federal HIPAA law, which preempts all conflicting state laws. It does not require a particular form of authorization document, does not require that the authorization be open-ended, and does not require that prior treating physicians comply with it. Therefore, it is likely that plaintiffs will formally comply with the statute by providing authorizations with short-term expiration dates, while pointing out that it is preempted by HIPAA, that physicians responding to it may be in violation of HIPAA, and that all sanctions under the federal HIPAA law may apply.