MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-21
Duty of Counsel to Insured and Insurer to Disclose Medical Records of an Employee-Claimant Unrelated to Worker’s Compensation Claim
You have requested guidance from the Committee regarding an attorney's ethical obligation to disseminate to an insured employer client personal medical information of an employee-claimant obtained through your defense of a worker's compensation claim on behalf of both your clients, the insured and insurer.
Further, you have advised that you issued subpoenas for the medical records of an employee claimant and that you provided employee-claimant's counsel with a copy of the request for the subpoena. The subpoenas are general requests for employee-claimant's medical records. Employee-claimant's counsel did not file any objection to the scope of the subpoenas. In responses to a subpoena, one of the medical providers delivered medical records to you related to the claim and to unrelated medical treatment and general information about the employee-claimant, namely, the conditions related to the HIV status, drug and alcohol use, prior injuries and family history.
The insured employer has requested that you deliver all of the employee-claimant's medical records. Neither you nor the insurer has told the insured employer about the unrelated medical conditions nor have those records been disseminated to any other person or entity. You do not expect the unrelated medical records to be used in the worker's compensation case.
As a result of these facts, you have inquired whether you may ethically withhold from the insured employer client the medical records unrelated to the claim that were delivered to you in connection with the worker's compensation case.
Your conduct is governed by both federal and Maryland laws regarding the dissemination of medical information as well as the Rules of Professional Conduct ("Rules") promulgated by the Court of Appeals of Maryland. The Committee will limit its response to guidance on your ethical duties under the Rules. If either federal or Maryland law prohibits or dictates the manner in which you may disseminate the medical records in question, then those laws will control.
Preliminarily, you must consider the scope of your dual representation of both the insurer and the insured employer. In Ethics Docket 2000-46, the Committee carefully and fully described the obligations of the attorney in adhering to the instructions of the insured and insurer, dual clients and the potential for conflicts of interest. See also, Brohawn v. Transamerica Ins. Co., 276 Md. 296 1975), Roussos v. Allstate Ins. Co., 104 Md. App. 80 (1995), Cincinnati Ins. Co. v. Wills, 717 N.E. 2nd 151 (Ind. 1999).
Since the employee-claimant is not your client, your conduct is not restricted by the mandate of Rule 1.6 regarding the confidentiality of information revealed. Nonethe-less statutory laws may govern your authority to disseminate medical information pertaining to the employee-claimant. Similarly, you may not ignore the requirements of applicable law to refrain from disseminating the medical records even in the face of your failure to comply with the directions of one of your clients. Although you are bound by and must act in accordance with Rule 1.2 (Scope of Representation), Rule 1.3 (Diligence), and Rule 1.4 (Communication) of the Rules of Professional Conduct, the statutory prohibitions must be observed, if applicable. If there are no prohibitions, then you should fulfill the reasonable requests for the medical information from your insured employer client.
Finally, in determining the scope of your ethical and legal obligations, the release executed by the employee-claimant may be dispositive of the resolution of your inquiry if the release is couched broadly to encompass all medical records of whatever nature, including those requested in the subpoena. Review of the release by this Committee is a matter of contract law on which the Committee must refrain from opining.