Prenatal Records & Medical Negligence

E.J. v. Okolocha (Ind. Ct. App. Aug. 13, 2012)

Parents interested in adopting a child submitted an authorization to a doctor for the child’s mother’s prenatal records. The doctor did not provide the records. The parents adopted the child who, unbeknownst to them, had neurological deficits. The doctor’s records included a sonogram that showed brain abnormalities. The Court of Appeals held that the defendant doctor did not owe a duty to provide the adoptive parents the prenatal records because the authorization did not comply with HIPAA.

This case includes an interesting and informative discussion of the interplay between HIPAA and Indiana law regarding the release of medical records. As the Court explains, the laws do not conflict, but instead, provide layers of protection for medical records. Therefore, requests for medical records must comply with both HIPAA and state law.

An interesting issue that the Court did not address is whether the doctor would have owed a duty if the authorizations complied with HIPAA and Indiana law. The adopting parents were not the doctor’s patients. Indiana courts have addressed the issue of whether a healthcare provider owes a duty to non-patients in a variety of contexts and have reached various results. SeeCram v. Howell, 680 N.E.2d 1096 (Ind. 1997) (finding duty); Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991) (finding no duty); Manley v. Sherer, 960 N.E.2d 815 (Ind. Ct. App. 2011) (finding duty), trans. Granted see also Gates v. Riley ex rel. Riley, 723 N.E.2d 946 (Ind. Ct. App. 2000) (finding no proximate cause in a claim brought against the physician by non-patient).

A final interesting aspect of the decision is the Court’s slightly veiled comment regarding the attorneys who assisted the parents with the adoption. The Court stated:

• We are mindful of the great emotional and monetary harm suffered by the Jeffreys in this case. However, it cannot be ignored that the Jeffreys and their attorneys were in the best position to avoid the harm suffered.

(Slip Op. p. 14.) This comment could suggest either that the Jeffreys should have drafted a HIPAA-compliant authorization or should have not proceeded with the adoption until they had the requested information and easily lead to future litigation regarding this unfortunate case.