By Sue Blevins

Even though the Health Insurance Portability and Accountability Act (HIPAA) does not let citizens sue in federal court if their medical privacy is breached, they are using state courts to seek redress for such breaches. So report several law journals and news outlets.

For example, a Utah man is suing a former physician for sharing his personal medical information with a defense attorney—without his [the patient's] consent.  The following excerpts from a 2006 Utah Trial Journal article by Christopher J. Rogers, Esq., summarize this important case:

• In Sorensen v. Barbuto, the Utah Court of Appeals recently cautioned all physicians to remember that they have a continuing duty of confidentiality to their current and former patients.... I [Christopher J. Rogers] believe the physician’s actions in this case represent extreme conduct….

• The case: Nicholas Sorensen was insured in [an] automobile accident in 1999 and sustained serious back and head injuries.  For a year and a half after the accident, Dr. John P. Barbuto, a Utah neurologist, treated Sorenson for his injuries.  Sorensen’s medical insurer eventually removed Dr. Barbuto from its approved provider list and Sorensen continued his treatment with another physician.

• Shortly thereafter, Sorensen filed a personal injury action against the other driver’s liability insurer.  As Sorensen’s previous treating physician, Dr. Barbuto was subpoenaed for trial and produced Sorensen’s medical records.  Trial was initially scheduled for May 2003 but was postponed until October.  At this point, Dr. Barbuto committed his error in judgment. 

• Dr. Barbuto’s blunder: The origins of Dr. Barbuto’s blunder derive from the fact that he is not only a treating physician but also an often-used defense medical expert.  He is frequently used in litigation because he provides predictable opinions for the defense where he attributes a plaintiff’s problems and personal injuries to psychological or social origins.

• Several months before trial, “Barbuto engaged in ex parte communications with defense counsel, prepared a ten-page report for defense counsel’s use, and agreed to testify as an expert witness for the defense.”  Now serving as a paid defense expert, Dr. Barbuto changed his previous diagnosis while he was treating Sorensen, and instead “asserted that psychological and social factors contributed to Sorensen’s medical injuries.”

• As a professional, after reading about Dr. [Barbuto’s] conduct you probably feel an immediate sense of indignation.  Not all of the reprimand should be placed on Dr. Barbuto. Defense attorneys should beware of encouraging such conduct.  Although the temptation exists for physicians to become paid hired guns in litigation and thereby make a substantial profit, it should never interfere with the physician’s ultimate duty of care and confidence to his own patients.