HIPAA\u27S Privacy Rule and State Privacy Laws: Roadblocks to Medical Organizations\u27 Self-Policing Expert Medical Testimony

As part of the wave of medical malpractice reforms over the last several decades, efforts were initiated to ensure the reliability and credibility of expert witness opinion and testimony, which is the sine qua non of necessary proof for any such claim or lawsuit. Governing bodies of professional medical organizations and societies have crafted rules and regulations for their members that wish to provide expert medical witness testimony. Where such testimony does not conform to these organizations’ standards, sanctions can be levied, including membership expulsion. Such self-policing has found favor with courts. Before sanctions are imposed, however, necessary administrative investigations and hearings are conducted, focusing on the foundation of the organization member’s expert opinions. But in these proceedings, there is a significant problem which has never been examined or analyzed in the legal literature or in any published appellate court decision: the submission of the patient’s medical information by either the complaining party or the responding expert in violation of HIPAA’s Privacy Rule or state privacy laws. This article examines and confronts the roadblocks to the self-policing mechanisms of professional medical organizations that they present. It concludes by proposing alternative methodologies and relief that may overcome the legal and regulatory roadblocks presented by HIPAA’s Privacy Rule and state laws