Adoptive parents cannot sue over child's birth defects

Adoption attorney did not follow the formalities of HIPAA’s disclosure rules

By Pat Murphy
The Daily Record Newswire
 
A New York couple didn’t learn until it was too late that the baby boy they wished to adopt had serious brain damage.

This month, they learned their legal remedies against the birth mother’s doctor were foreclosed by their adoption lawyer’s failure to follow the formalities of HIPAA’s disclosure rules.

In early 2006, Victor and Lynell Jeffrey began proceedings to adopt the baby of a pregnant Indiana woman, V.S. The Jeffreys hired a New York attorney to represent them in the adoption process. On Feb. 10, 2006 — two days prior to the birth — the Jeffreys’ lawyer faxed a request to V.S.’s doctor, Dr. Paul Okolocha, to obtain the mother’s prenatal records.

The fax included V.S.’s signed authorization for the release of her medical records. However, the authorization was addressed “TO WHOM IT MAY CONCERN,” instead of to Dr. Okolocha, and omitted other particulars which, as we shall see, are needed under the Health Insurance Portability and Accountability Act (HIPAA).

Dr. Okolocha ignored the request for the disclosure of prenatal records — not because the fax didn’t comply with HIPAA — but allegedly because the Jeffreys neglected to pay a $15 record copying fee to his office. It also didn’t help that V.S. had an unpaid $450 medical bill.

V.S. gave birth to E.J. on Feb. 12. The baby boy appeared to be healthy and the Jeffreys proceeded with the adoption. The process was completed on Aug. 25, 2006, and the New York couple had their new son.

But this story was not destined to have a happy ending.

By December 2006, the Jeffreys were concerned that E.J. was not developing as other children his age. Doctors later confirmed that E.J. had brain abnormalities and profound neurological deficits.

The Jeffreys were shocked when further investigation disclosed that the birth defects were detected in prenatal testing conducted by Dr. Okolocha.

On Feb. 1, 2006 — 11 days before E.J.’s birth — Dr. Okolocha ordered a sonogram for V.S. The sonogram showed that V.S.’s unborn baby had significant brain abnormalities. The procedure revealed birth defects associated with brain development delay, profound retardation, possible paralysis, spasticity and other severe neurological deficits. In sum, the sonogram indicated that E.J. would never lead a normal life and would require a lifetime of medical care and assistance.

Understandably, the Jeffreys never would have proceeded with the adoption had they known the results of the sonogram. In 2009, the Jeffreys sued Dr. Okolocha for negligence in Indiana state court. (The Jeffreys settled negligence claims against their New York attorney.)

Dr. Okolocha responded that he had no duty to disclose the sonogram to the Jeffreys because their lawyer’s disclosure request didn’t comply with HIPAA. An Indiana trial judge agreed and granted the doctor’s motion for summary judgment.

Last week, the Indiana Court of Appeals explained exactly why the records request faxed to Dr. Okolocha failed to satisfy HIPAA.

The court first explained that the “TO WHOM IT MAY CONCERN” fax ran afoul of the HIPAA regulation that a patient’s authorization for a release of medical records must include specific identification of the person authorized to make the disclosure.

“The critical nature of this core element cannot be understated,” the court explained. “It must be apparent from the face of the authorization that the signing patient knows specifically whom she is authorizing to make disclosure of her protected health records. The authorization here fails in this regard.”

The court further found that the authorization omitted a “description of each purpose of the requested use or disclosure” required by HIPAA regulations.

“There is no language in the authorization which describes, for example, that the information will be used to aid in the medical treatment or assessment of V.S.’s baby or to facilitate the future adoption proceedings,” the court said. “The signing patient must know not simply to whom, but for what purpose her protected information will be disclosed.”

Finally, the court pointed out that the authorization omitted the required statement that, by authorizing disclosure, V.S. was losing her right to keep the records confidential.

As to this latter point, the court explained that “a valid HIPAA authorization must put the signing patient on notice that her protected medical information may potentially be redisclosed by the recipient and is no longer protected information. Although the current authorization may have put V.S. on notice that the information would be forwarded to the adoptive parents and/or their pediatrician, she was not put on notice that her information is no longer protected and could potentially be redisclosed to additional individuals.”

Though the court was sympathetic with the Jeffreys’ plight, it had to agree with the trial judge that they had no recourse against Dr. Okolocha:

“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. The Jeffreys and their attorneys finalized the adoption of E.J. despite the fact that they had not received V.S.’s prenatal records from Dr. Okolocha. Unfortunately, there were tragic consequences to that gamble. Nevertheless, we cannot find a duty in negligence when none exists.”

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