Dissecting the Latest Pronouncements on Ex parte Physician Interviews

There is a recurring battle playing out in trial courts across the country in medical negligence cases. On one side, defendants purport to have the right to interview plaintiffs' treating physicians through ex parte interviews or informal meetings, where plaintiffs and their counsel are excluded from participation. On the other side, plaintiffs struggle to prohibit such interviews and meetings, consistently citing “The Health Insurance Portability and Accountability Act,” otherwise known by its acronym, “HIPAA.” Most recently, a Missouri appellate court, followed by a federal district court last month, each squarely decided the issue. They reached opposite conclusions, however. Now, the Supreme Court of Michigan is poised to decide the issue, which will mark the highest decision yet on HIPAA's application to ex parte physician interviews.

Drawing the Battle Lines

Principally, the most recent debate centers around the interpretation of an unlikely
provision in the HIPAA regulations; that is, the meaning of the phrase, “in the course of any judicial ' proceeding.” A court's interpretation of this arguably vague, and perhaps ambiguous, phrase is likely to be determinative as to whether ex parte interviews with a patient's treating physicians are permissible under HIPAA and its implementing privacy rules.

Before discussing this narrow issue, and the debate on both sides, it is useful to step back and review the context for the competing views.

Congress passed the legislation now known as HIPAA in 1996. It was the very first collection of national standards promulgated with respect to the protection of patient health information. The Department of Health and Human Services (HHS) is chiefly responsible for implementing certain aspects of HIPAA. HHS has issued what is generally referred to as “The Privacy Rule” in aid of protecting individual health information from unauthorized disclosure by “covered entities” (i.e., generally speaking, health care providers). After an extensive public comment period, the Secretary of HHS issued the final Privacy Rule in December 2000. The so-called “final rule” has since been further revised, and the modifications of the final Privacy Rule were published in August 2002. In interpreting HIPAA, it is important to consider both the text of the Act, as well as the rules and regulations promulgated by the Secretary of HHS, notably, parts 160, 162, and 164 of Subchapter C of Title 45 of the Code of Federal Regulations (“CFR”).

Does HIPAA Pre-empt Your State's Privacy Rules?

Before we turn next month to an in-depth look at the two recent cases out of Missouri and the U.S. District Court for the District of Kansas, it is important to note that they were decided against the backdrop of Missouri and Kansas law. In those two states, the default pre-HIPAA rule allowed ex parte interviews with defense counsel and plaintiff's treating physicians. Some other states' laws take the opposite position, prohibiting such interviews. If your jurisdiction's default pre-HIPAA rule already prohibits ex parte interviews, HIPAA will have no pre-emptive effect, since HIPAA cannot pre-empt a state law that is more stringent than the requirements of HIPAA.

Jamie Moncus, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton, where he practices as a trial lawyer in medical negligence cases.

There is a recurring battle playing out in trial courts across the country in medical negligence cases. On one side, defendants purport to have the right to interview plaintiffs' treating physicians through ex parte interviews or informal meetings, where plaintiffs and their counsel are excluded from participation. On the other side, plaintiffs struggle to prohibit such interviews and meetings, consistently citing “The Health Insurance Portability and Accountability Act,” otherwise known by its acronym, “HIPAA.” Most recently, a Missouri appellate court, followed by a federal district court last month, each squarely decided the issue. They reached opposite conclusions, however. Now, the Supreme Court of Michigan is poised to decide the issue, which will mark the highest decision yet on HIPAA's application to ex parte physician interviews.

Drawing the Battle Lines

Principally, the most recent debate centers around the interpretation of an unlikely
provision in the HIPAA regulations; that is, the meaning of the phrase, “in the course of any judicial ' proceeding.” A court's interpretation of this arguably vague, and perhaps ambiguous, phrase is likely to be determinative as to whether ex parte interviews with a patient's treating physicians are permissible under HIPAA and its implementing privacy rules.

Before discussing this narrow issue, and the debate on both sides, it is useful to step back and review the context for the competing views.

Congress passed the legislation now known as HIPAA in 1996. It was the very first collection of national standards promulgated with respect to the protection of patient health information. The Department of Health and Human Services (HHS) is chiefly responsible for implementing certain aspects of HIPAA. HHS has issued what is generally referred to as “The Privacy Rule” in aid of protecting individual health information from unauthorized disclosure by “covered entities” (i.e., generally speaking, health care providers). After an extensive public comment period, the Secretary of HHS issued the final Privacy Rule in December 2000. The so-called “final rule” has since been further revised, and the modifications of the final Privacy Rule were published in August 2002. In interpreting HIPAA, it is important to consider both the text of the Act, as well as the rules and regulations promulgated by the Secretary of HHS, notably, parts 160, 162, and 164 of Subchapter C of Title 45 of the Code of Federal Regulations (“CFR”).

Does HIPAA Pre-empt Your State's Privacy Rules?

Before we turn next month to an in-depth look at the two recent cases out of Missouri and the U.S. District Court for the District of Kansas, it is important to note that they were decided against the backdrop of Missouri and Kansas law. In those two states, the default pre-HIPAA rule allowed ex parte interviews with defense counsel and plaintiff's treating physicians. Some other states' laws take the opposite position, prohibiting such interviews. If your jurisdiction's default pre-HIPAA rule already prohibits ex parte interviews, HIPAA will have no pre-emptive effect, since HIPAA cannot pre-empt a state law that is more stringent than the requirements of HIPAA.

Jamie Moncus, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton, where he practices as a trial lawyer in medical negligence cases.