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Courts Diverge on Ex-Parte Interviews Under HIPAA

By Jamie Moncus

There is, as yet, no consensus on whether defense counsel in medical malpractice proceedings have the right to interview plaintiffs' treating physicians through ex parte interviews to which plaintiffs and their counsel are not invited. Plaintiffs generally seek to prohibit such interviews, citing the Health Insurance Portability and Accountability Act (HIPAA) as their legal basis. Sometimes they prevail with this argument, and sometimes they don't.

A review of two recent cases, in which the courts came to opposite conclusions, shows that there are valid arguments on both sides.

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