Courts Diverge on Ex-Parte Interviews Under HIPAA

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.

In MO, HIPAA Pre-empts State Law, Prohibits Ex-Parte Contacts

Late last year, the Missouri Court of Appeals for the Western District released a detailed and thorough opinion addressing whether HIPAA allows informal ex parte interviews between defense counsel and a plaintiff's treating physician in a medical negligence case. In State of Missouri ex rel. Proctor v. Messina, 2009 WL 3735919 (Mo. App. W.D. Nov. 10, 2009), the plaintiffs alleged medical negligence arising during a heart-related surgery. During the course of litigation, some of the defendants filed a motion seeking a formal order specifically allowing ex parte communications with the plaintiff's health care providers. The trial court found the motion well taken and, ostensibly relying on an exception to HIPAA, entered an order specifically authorizing all of the plaintiff's health care providers to engage in ex parte communications with counsel for defendants. The order read, in pertinent part, as follows:

You are ' notified that, pursuant to federal and state law, counsel for the defendants are hereby authorized to talk with [plaintiff's] treating physicians or other health care providers, without counsel or the parties, including the plaintiff, being present or participating, provided the health care provider consents to the interview.

The order further stated that each health care provider had a right to decline such an interview. In addition, the trial court's order recited that it was in compliance with “HIPAA federal standards for privacy of individual health information, 45 C.F.R. Parts 160 and 164 ' “

The Reversal

In reversing the trial court's ruling (via writ of prohibition), the Missouri Court of Appeals found that HIPAA did indeed prohibit ex parte communications between defense counsel and plaintiff's treating physicians. To reach its conclusion, the Proctor court engaged in an extensive textual pre-emption analysis along the following lines.

First, the court noted that the question of whether the Supremacy Clause of the United States Constitution may pre-empt contrary state law in the context of HIPAA was an issue of first impression in Missouri. Of course, while there are, generally speaking, three types of federal pre-emption, HIPAA simplifies the usual analysis by including a specific and express pre-emption provision, at 42 U.S.C. ' 1320d-7(a). That provision states,

Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law '

In addition, the Secretary of HHS, pursuant to her delegated authority, has promulgated a federal regulation on the pre-emptive effect of HIPAA, which similarly states that “[a] standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” 45 C.F.R. ' 160.203. Thus, the Missouri court in Proctor recognized that HIPAA would indeed pre-empt any state law found to be contrary to the dictates of the HIPAA privacy rules. Put more precisely, HIPAA pre-empts any provision of any state law that is contrary to, including less stringent than, HIPAA. But, to engage in such an analysis, one must first parse out exactly what the HIPAA privacy rules protect and prohibit; then, compare the applicable provision in HIPAA to the related provision of state law at issue.

The Court Draws on the Act

Drawing again on the text of the Act and its implementing regulations, the Proctor court found that HIPAA broadly prohibits “all disclosures” of “protected 'health information'” in the absence of any exception. Importantly, Subpart A of the CFR defines “health information” as “any information, whether oral or recorded in any form or medium ' ” 45 C.F.R. ' 160.103 (emphasis added). Thus, applying the simple and broadly written definition, the court reached the inescapable conclusion that HIPAA generally prohibits ex parte communications among plaintiff's health care providers and defense counsel absent an applicable exception. Furthermore, the Secretary's inclusion of the word “oral“ would seem to add further support to such an interpretation. (In fact, this interpretation of HIPAA's general prohibition has not been controversial.)

Of course, the analysis does not end here. HIPAA contains numerous exceptions that allow for the disclosure of protected “health information” in various circumstances. See 45 C.F.R. ' 164.502. At issue here is 45 C.F.R. ' 164.512(e)(1), which provides that patient authorization is not required for certain disclosures that occur during “the course of any judicial or administrative proceeding.” Put succinctly, HIPAA and its regulations allow the disclosure of “protected health information” in “the course of any judicial or administrative proceeding” if such disclosure is: 1) in response to an order of a court or administrative tribunal; or 2) in response to a subpoena, discovery request, or other lawful process, subject to certain safeguards and conditions (none of which is at issue for the matter presented here). Thus, the core issue becomes apparent ' an ex parte conference between defense counsel and plaintiff's treating physicians can only be permitted if either: 1) it is specifically authorized by the plaintiff pursuant to 45 C.F.R. ' 164.508(a)(1); or 2) such a meeting/interview/conference is conducted pursuant to a specific court order authorizing such a conference, and is “in the course of” a “judicial proceeding.”

In Proctor, the proposed ex parte conference between defense counsel and plaintiff's health care providers was indeed specifically authorized by an order of the trial court. However, the Missouri Court of Appeals determined that such a meeting could not occur during “the course of [a] judicial ' proceeding.” Thus, the court disallowed the meeting and held that HIPAA pre-empted (or in its specific terms “harmonized” with) Missouri State law to prohibit all such ex parte meetings. But the end result begs the question: What kind of otherwise protected disclosure is “in the course of” a “judicial proceeding,” and can an ex parte meeting of defense lawyers and plaintiff's health care providers ever be considered “in the course of” a “judicial proceeding”?

'In the Course Of'

Significantly, neither HIPAA nor its implementing regulations contain any definition of “in the course of” or “judicial proceeding.” The Proctor court first turned to the common definitions found in The New Oxford American Dictionary as well as Black's Law Dictionary for assistance. In brief, these sources lend support to a definition of the phrase that would require some sort of oversight role by the trial court, rather than a disclosure that is merely incidental to a “judicial proceeding.” But, more interestingly, the court found guidance in a similar phrase that HHS formerly rejected, choosing instead the phrase, “in the course of” a “judicial proceeding.” A mention of this is made in the Federal Register, which states: “The Secretary has stated that [HHS] considered using the phrase 'in conjunction with' any judicial ' proceeding but decided to use the phrase 'in the course of' any judicial ' proceeding because 'in conjunction with' would allow disclosures in situations where the trial court had no oversight capacity'” 64 Fed. Reg. at 59959 (emphasis added). The court then added that while Missouri law has traditionally allowed ex parte conferences between defense counsel and plaintiff's treating physicians, it has never “supervised” them or “exercised authority over them.” Thus, the court held that these formerly permitted informal ex parte meetings are disallowed under HIPAA because they do not occur “in the course of” a “judicial proceeding” and are further not in any way supervised or sanctioned by the court.

In short, meetings between defense counsel and plaintiff's health care providers are not judicial proceedings and do not occur during the “course of” “judicial proceeding[s]” because “ the trial court has no general oversight of the meeting or any control over it.” As such, the court concluded that informal ex parte meetings are prohibited under HIPAA's general rule that forbids such meetings and “oral” exchanges of “protected health information.”

District Court Says HIPAA Does Not Pre-Empt KS Law

In contrast, the U.S. District Court for the District of Kansas has just recently rejected the Proctor decision, finding instead that HIPAA does not pre-empt Kansas State law to prohibit informal ex parte interviews between defense counsel and plaintiff's treating physicians. Pratt v. Petelin, 2010 WL 446474 (D. Kan. Feb. 4, 2010). In the Pratt case, defendants likewise sought an order specifically allowing defense counsel to conduct informal ex parte interviews with plaintiff's treating physicians. Plaintiff sought to prohibit such interviews, citing a variety of objections, including public policy concerns and an arguable lack of any good reason to allow such interviews. The plaintiff also cited HIPAA, in conjunction with the recent decision in Proctor, in trying to keep defense counsel from interviewing the treating physicians.

Unfortunately, the district court's decision in Pratt fails to engage in the same rigor of analytical scrutiny as the methodically meticulous decision of the Missouri Court of Appeals. Even so, the court did consider the logic of the Proctor decision, as well as its reliance on the key “judicial proceeding” language, but simply disagreed; instead, the Pratt court concluded that “an ex parte interview of a plaintiff's treating physician nevertheless proceeds as incidental to a pending law suit and to that extent may be regarded as 'in the course of' a judicial proceeding.” Of note is the fact that the Kansas district court did specifically acknowledge HIPAA's general prohibition of the exchange of “protected health information,” “including [its] verbal disclosure” in the absence of any exception. However, this court found the exception applicable and simply refused to follow the analysis of Proctor with respect to the definition of “in the course of” a “judicial proceeding,” finding that because such a meeting is “incidental to a pending law suit” it is permitted under the exception in 45 C.F.R. ' 164.512(e)(1).

Conclusion

Thus the battle lines have been clearly delineated ' does an ex parte physician interview occur “in the course of” a “judicial proceeding?” If not, HIPAA will intervene to prohibit such meetings. If, on the other hand, an ex parte meeting is construed to occur during “the course of” a “judicial proceeding,” HIPAA will allow such a meeting, but only if the state court order also specifically allows such a meeting.

Of course, there are competing public policy factors to consider on both sides of the debate. Plaintiffs and defendants can both recite multiple arguments for and against allowing ex parte interviews with the plaintiff's health care providers. However, it also seems clear that a court should first focus on the issue of federal pre-emption and the specific text of the Act, along with its implementing regulations.

The Supreme Court of Michigan will now have an opportunity to do just that in what promises to be an important decision with potential national impact. The case of Andrea Holman v. Mark Rasak, also a medical negligence case, is currently on appeal after the Michigan Court of Appeals ruled that HIPAA allowed ex parte interviews as long as a qualified protective order was in place. The court has accepted numerous amicus briefs, and a decision is expected in the near future.

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

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.

In MO, HIPAA Pre-empts State Law, Prohibits Ex-Parte Contacts

Late last year, the Missouri Court of Appeals for the Western District released a detailed and thorough opinion addressing whether HIPAA allows informal ex parte interviews between defense counsel and a plaintiff's treating physician in a medical negligence case. In State of Missouri ex rel. Proctor v. Messina, 2009 WL 3735919 (Mo. App. W.D. Nov. 10, 2009), the plaintiffs alleged medical negligence arising during a heart-related surgery. During the course of litigation, some of the defendants filed a motion seeking a formal order specifically allowing ex parte communications with the plaintiff's health care providers. The trial court found the motion well taken and, ostensibly relying on an exception to HIPAA, entered an order specifically authorizing all of the plaintiff's health care providers to engage in ex parte communications with counsel for defendants. The order read, in pertinent part, as follows:

You are ' notified that, pursuant to federal and state law, counsel for the defendants are hereby authorized to talk with [plaintiff's] treating physicians or other health care providers, without counsel or the parties, including the plaintiff, being present or participating, provided the health care provider consents to the interview.

The order further stated that each health care provider had a right to decline such an interview. In addition, the trial court's order recited that it was in compliance with “HIPAA federal standards for privacy of individual health information, 45 C.F.R. Parts 160 and 164 ' “

The Reversal

In reversing the trial court's ruling (via writ of prohibition), the Missouri Court of Appeals found that HIPAA did indeed prohibit ex parte communications between defense counsel and plaintiff's treating physicians. To reach its conclusion, the Proctor court engaged in an extensive textual pre-emption analysis along the following lines.

First, the court noted that the question of whether the Supremacy Clause of the United States Constitution may pre-empt contrary state law in the context of HIPAA was an issue of first impression in Missouri. Of course, while there are, generally speaking, three types of federal pre-emption, HIPAA simplifies the usual analysis by including a specific and express pre-emption provision, at 42 U.S.C. ' 1320d-7(a). That provision states,

Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law '

In addition, the Secretary of HHS, pursuant to her delegated authority, has promulgated a federal regulation on the pre-emptive effect of HIPAA, which similarly states that “[a] standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” 45 C.F.R. ' 160.203. Thus, the Missouri court in Proctor recognized that HIPAA would indeed pre-empt any state law found to be contrary to the dictates of the HIPAA privacy rules. Put more precisely, HIPAA pre-empts any provision of any state law that is contrary to, including less stringent than, HIPAA. But, to engage in such an analysis, one must first parse out exactly what the HIPAA privacy rules protect and prohibit; then, compare the applicable provision in HIPAA to the related provision of state law at issue.

The Court Draws on the Act

Drawing again on the text of the Act and its implementing regulations, the Proctor court found that HIPAA broadly prohibits “all disclosures” of “protected 'health information'” in the absence of any exception. Importantly, Subpart A of the CFR defines “health information” as “any information, whether oral or recorded in any form or medium ' ” 45 C.F.R. ' 160.103 (emphasis added). Thus, applying the simple and broadly written definition, the court reached the inescapable conclusion that HIPAA generally prohibits ex parte communications among plaintiff's health care providers and defense counsel absent an applicable exception. Furthermore, the Secretary's inclusion of the word “oral“ would seem to add further support to such an interpretation. (In fact, this interpretation of HIPAA's general prohibition has not been controversial.)

Of course, the analysis does not end here. HIPAA contains numerous exceptions that allow for the disclosure of protected “health information” in various circumstances. See 45 C.F.R. ' 164.502. At issue here is 45 C.F.R. ' 164.512(e)(1), which provides that patient authorization is not required for certain disclosures that occur during “the course of any judicial or administrative proceeding.” Put succinctly, HIPAA and its regulations allow the disclosure of “protected health information” in “the course of any judicial or administrative proceeding” if such disclosure is: 1) in response to an order of a court or administrative tribunal; or 2) in response to a subpoena, discovery request, or other lawful process, subject to certain safeguards and conditions (none of which is at issue for the matter presented here). Thus, the core issue becomes apparent ' an ex parte conference between defense counsel and plaintiff's treating physicians can only be permitted if either: 1) it is specifically authorized by the plaintiff pursuant to 45 C.F.R. ' 164.508(a)(1); or 2) such a meeting/interview/conference is conducted pursuant to a specific court order authorizing such a conference, and is “in the course of” a “judicial proceeding.”

In Proctor, the proposed ex parte conference between defense counsel and plaintiff's health care providers was indeed specifically authorized by an order of the trial court. However, the Missouri Court of Appeals determined that such a meeting could not occur during “the course of [a] judicial ' proceeding.” Thus, the court disallowed the meeting and held that HIPAA pre-empted (or in its specific terms “harmonized” with) Missouri State law to prohibit all such ex parte meetings. But the end result begs the question: What kind of otherwise protected disclosure is “in the course of” a “judicial proceeding,” and can an ex parte meeting of defense lawyers and plaintiff's health care providers ever be considered “in the course of” a “judicial proceeding”?

'In the Course Of'

Significantly, neither HIPAA nor its implementing regulations contain any definition of “in the course of” or “judicial proceeding.” The Proctor court first turned to the common definitions found in The New Oxford American Dictionary as well as Black's Law Dictionary for assistance. In brief, these sources lend support to a definition of the phrase that would require some sort of oversight role by the trial court, rather than a disclosure that is merely incidental to a “judicial proceeding.” But, more interestingly, the court found guidance in a similar phrase that HHS formerly rejected, choosing instead the phrase, “in the course of” a “judicial proceeding.” A mention of this is made in the Federal Register, which states: “The Secretary has stated that [HHS] considered using the phrase 'in conjunction with' any judicial ' proceeding but decided to use the phrase 'in the course of' any judicial ' proceeding because 'in conjunction with' would allow disclosures in situations where the trial court had no oversight capacity'” 64 Fed. Reg. at 59959 (emphasis added). The court then added that while Missouri law has traditionally allowed ex parte conferences between defense counsel and plaintiff's treating physicians, it has never “supervised” them or “exercised authority over them.” Thus, the court held that these formerly permitted informal ex parte meetings are disallowed under HIPAA because they do not occur “in the course of” a “judicial proceeding” and are further not in any way supervised or sanctioned by the court.

In short, meetings between defense counsel and plaintiff's health care providers are not judicial proceedings and do not occur during the “course of” “judicial proceeding[s]” because “ the trial court has no general oversight of the meeting or any control over it.” As such, the court concluded that informal ex parte meetings are prohibited under HIPAA's general rule that forbids such meetings and “oral” exchanges of “protected health information.”

District Court Says HIPAA Does Not Pre-Empt KS Law

In contrast, the U.S. District Court for the District of Kansas has just recently rejected the Proctor decision, finding instead that HIPAA does not pre-empt Kansas State law to prohibit informal ex parte interviews between defense counsel and plaintiff's treating physicians. Pratt v. Petelin, 2010 WL 446474 (D. Kan. Feb. 4, 2010). In the Pratt case, defendants likewise sought an order specifically allowing defense counsel to conduct informal ex parte interviews with plaintiff's treating physicians. Plaintiff sought to prohibit such interviews, citing a variety of objections, including public policy concerns and an arguable lack of any good reason to allow such interviews. The plaintiff also cited HIPAA, in conjunction with the recent decision in Proctor, in trying to keep defense counsel from interviewing the treating physicians.

Unfortunately, the district court's decision in Pratt fails to engage in the same rigor of analytical scrutiny as the methodically meticulous decision of the Missouri Court of Appeals. Even so, the court did consider the logic of the Proctor decision, as well as its reliance on the key “judicial proceeding” language, but simply disagreed; instead, the Pratt court concluded that “an ex parte interview of a plaintiff's treating physician nevertheless proceeds as incidental to a pending law suit and to that extent may be regarded as 'in the course of' a judicial proceeding.” Of note is the fact that the Kansas district court did specifically acknowledge HIPAA's general prohibition of the exchange of “protected health information,” “including [its] verbal disclosure” in the absence of any exception. However, this court found the exception applicable and simply refused to follow the analysis of Proctor with respect to the definition of “in the course of” a “judicial proceeding,” finding that because such a meeting is “incidental to a pending law suit” it is permitted under the exception in 45 C.F.R. ' 164.512(e)(1).

Conclusion

Thus the battle lines have been clearly delineated ' does an ex parte physician interview occur “in the course of” a “judicial proceeding?” If not, HIPAA will intervene to prohibit such meetings. If, on the other hand, an ex parte meeting is construed to occur during “the course of” a “judicial proceeding,” HIPAA will allow such a meeting, but only if the state court order also specifically allows such a meeting.

Of course, there are competing public policy factors to consider on both sides of the debate. Plaintiffs and defendants can both recite multiple arguments for and against allowing ex parte interviews with the plaintiff's health care providers. However, it also seems clear that a court should first focus on the issue of federal pre-emption and the specific text of the Act, along with its implementing regulations.

The Supreme Court of Michigan will now have an opportunity to do just that in what promises to be an important decision with potential national impact. The case of Andrea Holman v. Mark Rasak, also a medical negligence case, is currently on appeal after the Michigan Court of Appeals ruled that HIPAA allowed ex parte interviews as long as a qualified protective order was in place. The court has accepted numerous amicus briefs, and a decision is expected in the near future.

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