A Playbook for Medical Evidence, By Betsy Campo, Partner, Gainesville

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It is March madness time, and nothing is more thrilling than seeing the excitement of the teams as they come together and the best of the best battle for the championship. In some ways, it causes me to reminisce about the teamwork that has gone into defending the more memorable cases I’ve handled over the course of the past 30 years (yikes, has it been that long? I must have been born a law school graduate!). When an employer is involved and actively participates in the defense of our Worker’s Compensation claims, it is so rewarding to see the evidence come together in a successful manner.

March also brings the Ides of March, and a cautionary tale of bad things that can happen. This reminds me that, although the employer, adjuster and I work in tandem towards the defense of our cases, we all have different rights and responsibilities with regard to the information that we obtain in the course of the defense of a Worker’s Compensation matter.  It is important to remember that, as custodians of the evidence, we need to ensure that it is used for proper purposes, that personal information is not wrongly disseminated, and that the evidence is also either properly preserved or disposed of upon the conclusion of the workers’ compensation case.  One area in which this is of utmost importance pertains to medical records.

It is so helpful when an employer can alert me to information about a claimant’s pre-existing condition, possible news of prior accidents or injuries, or even information about a claimant engaging in risky behavior that might make them more susceptible to injury or accident.  It isn’t unusual for us to subpoena records from claimant’s pharmacy, PCP, local urgent cares or hospitals, and it helps to have some direction with regard to where to begin that investigation. When received, those subpoenaed.
records often contain information that can be used for many purposes, such as to challenge major contributing cause, or to possibly defend based upon an idiopathic condition.    The medical information we secure as a result of these subpoenas is often invaluable towards the successful defense or resolution of our claims. 

In Florida Workers’ Compensation, the whole defense team is provided broad access to a claimant’s medical records.

Fla. Stat. § 440.13(4)(c)(2021) provides, in relevant part:

….upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury…discussions or release of information may be held before or after the filing of a claim or petition for benefits without the knowledge, consent, or presence of any other party or his or her agent or representative.

So, statutorily, the entire team is entitled to relevant medical records.  The key word here is “relevant”.  The records must be relevant to the injury alleged.  However, in addition to relevant information, the PCP and other medical records also may contain details about personal medical conditions of the claimant that, although interesting, have no bearing on the work-related condition.  In this situation, there isn’t anything in the Florida Statutes that allows for the entire team (the employer, carrier and defense counsel) to access these details.  In fact, if the information that we legally obtain, but that is irrelevant, is wrongfully shared or not protected, the Health Information Portability and Privacy Act (HIPAA) provides for serious consequences, particularly for the claimant’s employer. 

A HIPAA violation in the workplace refers to a situation where an employee’s health information has fallen into the wrong hands, whether willfully or inadvertently, without his consent.  A HIPAA breach in a company can attract a hefty fine, costing the employer thousands of dollars and possible jail time.  The Office for Civil Rights imposes fines that range from $100 to $50,000 for every violation by covered entities. The penalty amounts skyrocket if one’s actions were intentional. There is a risk of a fine of up to $250,000 and a ten-year jail sentence if an employer leaks personal health information with intent to sell or for personal gain. 

In order to safeguard our team against the risks involved with personal medical information being mishandled, we all need to work together, not only to defend our claims, but to also safeguard the claimant’s medical information. The risks and penalties far outweigh the temptation of defense counsel to share all subpoenaed information, or the interest of the employer in discovering irrelevant details about the employee’s personal conditions. 

Accordingly, so that we need not “Beware the Ides of March”, our best strategy is to contain the sharing of a claimant’s personal medical information to only that information that is relevant to the injuries claimed to have occurred on the job.  Make sure to keep HIPAA violations at bay and keep your play book focused upon the specific details needed to defend or resolve claims in the most economical way possible.