The Qualified Protective Order

The debate continues on how the Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to, and affects, ex parte communications in civil litigation. As a federal regulation applicable to all states, one would expect HIPAA to establish a modicum of consistency in how local jurisdictions determine the scope of ex parte communication allowed between defense counsel and the plaintiff's health care providers. At present, however, that is a dream deferred.

Appellate courts nationwide are wrestling with assurance that state discovery laws comply with HIPAA mandates for limiting access to an individual's protected health information (PHI). Not surprisingly, since there are variations among state courts' interpretations of their respective rules governing ex parte communications with health care providers, vastly different appellate court directives exist for complying with HIPAA. Some courts have held that HIPAA absolutely precludes informal ex parte communications between defense counsel and the plaintiff's treating physicians, while others have concluded that such communications are permitted.

Two recent decisions suggest that there may indeed be a light at the end of the tunnel for establishing some uniformity on this issue. As described below, a qualified protective order can serve to provide the safeguards HIPAA requires for allowing informal communications between defense counsel and the plaintiff's health care providers.

Qualified Protective Orders

A qualified protective order is an effective tool for allowing ex parte communications with health care providers in accordance with HIPAA requirements

In pertinent part, 45 CFR 160.203 provides that the HIPAA guidelines pre-empt state law relating to the disclosure of protected health information, unless the state's requirements are more stringent. 45 CFR ' 160.203(b). Deciding if state or federal law applies is an important part of the informal ex parte communication analysis. However, the answer to that query is not dispositive on the question of whether the communication will be allowed. Indeed, both HIPAA and state law have been used to authorize and prohibit ex parte communications. It seems that a doctrine accepted in both forums would help curb the inconsistency among appellate courts on this issue.

The qualified protective order has emerged as a device consistent with HIPAA and most existing state law that allows informal ex parte communications in accordance with HIPAA guidelines. Under HIPAA, a health care provider may disclose PHI in response to a court order, or in response to a “subpoena, discovery request or other lawful process,” so long as the party seeking the information has taken reasonable steps to secure a qualified protective order. 45 CFR ' 164.512(e)(1)(i), (ii)(B). HIPAA defines a qualified protective order as a court order or stipulation among the parties that: 1) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and 2) requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 CFR ' 164.512(e)(1)(v).

Qualified protective orders must contain language restricting the PHI disclosed to that which is relevant to the litigation, and must direct the return/destruction of the information at the close of the case. It seems logical that consistent language in proposed qualified protective orders would result in regular approval of ex parte interviews.

GA High Court: Qualified Protective Order May
Allow Communications

In a June 1 decision, the Georgia Supreme Court ruled that ex parte interviews are proper in medical malpractice litigation when subject to a qualified protective order containing the procedural safeguards required by HIPAA. Baker v. Wellstar Health Systems Inc., 2010 WL 2159372 (Ga. 6/1/10). The Baker opinion was rather succinct, yet its reference to and reliance upon prior Georgia precedent related to ex parte interviews provides greater context.

Prior to Baker, the seminal Georgia case regarding informal ex parte communications was Moreland v. Austin, 284 Ga. 730, 670, S.E.2d 68 (2008). In Moreland, the trial court ruled that the medical malpractice defendants could interview the patient's treating physicians only after notifying the plaintiff and allowing plaintiff's counsel to attend the interviews. The Court of Appeals later held that the defendants could have ex parte communications with the treating physicians as long as the disclosure of PHI was in compliance with HIPAA and Georgia Law. In reversing that decision, the Georgia Supreme Court first noted that HIPAA pre-empts Georgia law because HIPAA is more stringent. Under State law, the physician could informally disclose certain PHI to defense counsel after the lawsuit put the patient's medical condition in issue. Conversely, HIPAA only allows such communication pursuant to a court order or after other precautions are taken to prevent improper use of the PHI. Thus, the court held that defense counsel's interviews were conditioned upon compliance with HIPAA.

Similarly, the Baker case involved another medical negligence case, but defense counsel was granted a qualified protective order allowing ex parte interviews. Since it had been previously established that HIPAA pre-empts Georgia law, the Georgia Supreme Court was now asked to determine whether the qualified protective order at issue complied with HIPAA.

In relevant part, the qualified protective order stated:

It is hereby ordered that Defendant's counsel is hereby permitted to engage in ex parte communications with Russel Baker's treating physicians and other healthcare providers. This Court notes, however that the treating physicians and other healthcare providers are not required to engage in ex parte communications with Defendant's counsel, but they may do so at their
own choosing. Plaintiff's treating physicians and other healthcare providers may discuss Plaintiff's medical condition and any past, present or future care and treatment with Defendant's counsel. It is hereby further ordered that Defendant's counsel are forbidden from using or disclosing Plaintiff's protected health information for any purpose other than this litigation. It is further ordered that Defendant's counsel shall return any protected health information to the physicians and other healthcare providers or destroy the protected healthcare information, including all copies made, at the end of this litigation.

The court first noted that HIPAA does not address the “propriety of ex parte interviews.” Appearing to satisfy all of the requirements of a qualified protective order under 45 CFR ' 164.512(e)(1)(v), the court determined that this order incorporated all of the procedural safeguards mandated by HIPAA. Ironically, though, the court also held that the order violated Georgia substantive law because it was not limited to the plaintiff's health issues relevant to the litigation. The order allowed defense counsel to explore the plaintiff's past, present or future treatment. As such, the qualified protective order was valid to authorize ex parte interviews of treating physicians, but needed to be narrowed in scope.

MI Supreme Court: Lawful Process Allows Ex Parte Communications

In a decision that in many ways parallels the analysis in Baker, the Michigan Supreme Court recently held that neither HIPAA nor Michigan law preclude a medical malpractice defendant from using a qualified protective order to conduct ex parte interviews. This decision may be another step toward legitimizing the qualified protective order as a means for conducting ex parte interviews.

In Holman v. Rasak, 2010 WL 2159372 (July 13, 2010), the plaintiff refused to allow the defendant to interview relevant health care providers. The trial court stated that HIPAA does not relate to ex parte oral interviews, and denied the defendant's motion for a qualified protective order. The Michigan Court of Appeals held that HIPAA does permit ex parte interviews so long as the requirements of 45 CFR 164.512(e)(1) are satisfied. The Supreme Court affirmed that ruling. In its analysis the court assessed whether HIPAA pre-empted Michigan law and whether the applicable standard allowed ex parte interviews.

Like Georgia's law (O.C.G.A. ' 24-9-40(a)), Michigan has a statute wherein the plaintiff waives the physician-patient privilege related to any medical condition at issue in the litigation, and for all physicians who may have treated that condition. MCL ' 600.2157. Michigan also has a provision specifically authorizing a defendant in litigation involving medical treatment to communicate with persons involved with that treatment for purposes of preparing a defense. MCL ' 600.2912f; Domako v. Rowe, 438 Mich. 347, 475 N.W.2d 30 (1991). The Holman court compared these provisions with HIPAA's requirements and concluded that HIPAA does not pre-empt the State law because ex parte communications can occur in compliance with both sets of standards.

The Holman court held that ex parte interviews are allowed. In support of its decision, the court observed that Michigan law specifically authorizes ex parte interviews as a form of informal discovery, and nothing in HIPAA precludes such communications. Thus, a qualified protective order is a form of “other lawful process” under 45 CFR 164.512(e)(1)(ii) that allows ex parte interviews. As such, a health care provider is permitted to disclose PHI during an ex parte interview as long as there is satisfactory assurance that the defendant has made reasonable efforts to secure an appropriate order.

Conclusion

The Georgia and Michigan cases provide ammunition for arguing that an adequate qualified protective order is an effective tool for allowing ex parte interviews in compliance with HIPAA. However, these two decisions are no guarantee that the light at the end of the tunnel isn't an oncoming train. As the Baker decision made clear, the language of the proposed order is critical to determining whether state and HIPAA requirements are met. Moreover, the Holman court noted that neither state law nor HIPAA requires a health care provider to participate in an ex parte interview. Finally, most jurisdictions empower the trial court with broad discretion to decide whether and to what extent any discovery should be had. Thus, many additional variables factor into whether the interview is authorized and/or will occur.

Broderick Harrell is an attorney with Carlock, Copeland & Stair, LLP in Atlanta, where his practice focuses on professional negligence and premises liability litigation.

The debate continues on how the Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies to, and affects, ex parte communications in civil litigation. As a federal regulation applicable to all states, one would expect HIPAA to establish a modicum of consistency in how local jurisdictions determine the scope of ex parte communication allowed between defense counsel and the plaintiff's health care providers. At present, however, that is a dream deferred.

Appellate courts nationwide are wrestling with assurance that state discovery laws comply with HIPAA mandates for limiting access to an individual's protected health information (PHI). Not surprisingly, since there are variations among state courts' interpretations of their respective rules governing ex parte communications with health care providers, vastly different appellate court directives exist for complying with HIPAA. Some courts have held that HIPAA absolutely precludes informal ex parte communications between defense counsel and the plaintiff's treating physicians, while others have concluded that such communications are permitted.

Two recent decisions suggest that there may indeed be a light at the end of the tunnel for establishing some uniformity on this issue. As described below, a qualified protective order can serve to provide the safeguards HIPAA requires for allowing informal communications between defense counsel and the plaintiff's health care providers.

Qualified Protective Orders

A qualified protective order is an effective tool for allowing ex parte communications with health care providers in accordance with HIPAA requirements

In pertinent part, 45 CFR 160.203 provides that the HIPAA guidelines pre-empt state law relating to the disclosure of protected health information, unless the state's requirements are more stringent. 45 CFR ' 160.203(b). Deciding if state or federal law applies is an important part of the informal ex parte communication analysis. However, the answer to that query is not dispositive on the question of whether the communication will be allowed. Indeed, both HIPAA and state law have been used to authorize and prohibit ex parte communications. It seems that a doctrine accepted in both forums would help curb the inconsistency among appellate courts on this issue.

The qualified protective order has emerged as a device consistent with HIPAA and most existing state law that allows informal ex parte communications in accordance with HIPAA guidelines. Under HIPAA, a health care provider may disclose PHI in response to a court order, or in response to a “subpoena, discovery request or other lawful process,” so long as the party seeking the information has taken reasonable steps to secure a qualified protective order. 45 CFR ' 164.512(e)(1)(i), (ii)(B). HIPAA defines a qualified protective order as a court order or stipulation among the parties that: 1) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and 2) requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 45 CFR ' 164.512(e)(1)(v).

Qualified protective orders must contain language restricting the PHI disclosed to that which is relevant to the litigation, and must direct the return/destruction of the information at the close of the case. It seems logical that consistent language in proposed qualified protective orders would result in regular approval of ex parte interviews.

GA High Court: Qualified Protective Order May
Allow Communications

In a June 1 decision, the Georgia Supreme Court ruled that ex parte interviews are proper in medical malpractice litigation when subject to a qualified protective order containing the procedural safeguards required by HIPAA. Baker v. Wellstar Health Systems Inc., 2010 WL 2159372 (Ga. 6/1/10). The Baker opinion was rather succinct, yet its reference to and reliance upon prior Georgia precedent related to ex parte interviews provides greater context.

Prior to Baker , the seminal Georgia case regarding informal ex parte communications was Moreland v. Austin , 284 Ga. 730, 670, S.E.2d 68 (2008). In Moreland, the trial court ruled that the medical malpractice defendants could interview the patient's treating physicians only after notifying the plaintiff and allowing plaintiff's counsel to attend the interviews. The Court of Appeals later held that the defendants could have ex parte communications with the treating physicians as long as the disclosure of PHI was in compliance with HIPAA and Georgia Law. In reversing that decision, the Georgia Supreme Court first noted that HIPAA pre-empts Georgia law because HIPAA is more stringent. Under State law, the physician could informally disclose certain PHI to defense counsel after the lawsuit put the patient's medical condition in issue. Conversely, HIPAA only allows such communication pursuant to a court order or after other precautions are taken to prevent improper use of the PHI. Thus, the court held that defense counsel's interviews were conditioned upon compliance with HIPAA.

Similarly, the Baker case involved another medical negligence case, but defense counsel was granted a qualified protective order allowing ex parte interviews. Since it had been previously established that HIPAA pre-empts Georgia law, the Georgia Supreme Court was now asked to determine whether the qualified protective order at issue complied with HIPAA.

In relevant part, the qualified protective order stated:

It is hereby ordered that Defendant's counsel is hereby permitted to engage in ex parte communications with Russel Baker's treating physicians and other healthcare providers. This Court notes, however that the treating physicians and other healthcare providers are not required to engage in ex parte communications with Defendant's counsel, but they may do so at their
own choosing. Plaintiff's treating physicians and other healthcare providers may discuss Plaintiff's medical condition and any past, present or future care and treatment with Defendant's counsel. It is hereby further ordered that Defendant's counsel are forbidden from using or disclosing Plaintiff's protected health information for any purpose other than this litigation. It is further ordered that Defendant's counsel shall return any protected health information to the physicians and other healthcare providers or destroy the protected healthcare information, including all copies made, at the end of this litigation.

The court first noted that HIPAA does not address the “propriety of ex parte interviews.” Appearing to satisfy all of the requirements of a qualified protective order under 45 CFR ' 164.512(e)(1)(v), the court determined that this order incorporated all of the procedural safeguards mandated by HIPAA. Ironically, though, the court also held that the order violated Georgia substantive law because it was not limited to the plaintiff's health issues relevant to the litigation. The order allowed defense counsel to explore the plaintiff's past, present or future treatment. As such, the qualified protective order was valid to authorize ex parte interviews of treating physicians, but needed to be narrowed in scope.

MI Supreme Court: Lawful Process Allows Ex Parte Communications

In a decision that in many ways parallels the analysis in Baker, the Michigan Supreme Court recently held that neither HIPAA nor Michigan law preclude a medical malpractice defendant from using a qualified protective order to conduct ex parte interviews. This decision may be another step toward legitimizing the qualified protective order as a means for conducting ex parte interviews.

In Holman v. Rasak, 2010 WL 2159372 (July 13, 2010), the plaintiff refused to allow the defendant to interview relevant health care providers. The trial court stated that HIPAA does not relate to ex parte oral interviews, and denied the defendant's motion for a qualified protective order. The Michigan Court of Appeals held that HIPAA does permit ex parte interviews so long as the requirements of 45 CFR 164.512(e)(1) are satisfied. The Supreme Court affirmed that ruling. In its analysis the court assessed whether HIPAA pre-empted Michigan law and whether the applicable standard allowed ex parte interviews.

Like Georgia's law (O.C.G.A. ' 24-9-40(a)), Michigan has a statute wherein the plaintiff waives the physician-patient privilege related to any medical condition at issue in the litigation, and for all physicians who may have treated that condition. MCL ' 600.2157. Michigan also has a provision specifically authorizing a defendant in litigation involving medical treatment to communicate with persons involved with that treatment for purposes of preparing a defense. MCL ' 600.2912f; Domako v. Rowe , 438 Mich. 347, 475 N.W.2d 30 (1991). The Holman court compared these provisions with HIPAA's requirements and concluded that HIPAA does not pre-empt the State law because ex parte communications can occur in compliance with both sets of standards.

The Holman court held that ex parte interviews are allowed. In support of its decision, the court observed that Michigan law specifically authorizes ex parte interviews as a form of informal discovery, and nothing in HIPAA precludes such communications. Thus, a qualified protective order is a form of “other lawful process” under 45 CFR 164.512(e)(1)(ii) that allows ex parte interviews. As such, a health care provider is permitted to disclose PHI during an ex parte interview as long as there is satisfactory assurance that the defendant has made reasonable efforts to secure an appropriate order.

Conclusion

The Georgia and Michigan cases provide ammunition for arguing that an adequate qualified protective order is an effective tool for allowing ex parte interviews in compliance with HIPAA. However, these two decisions are no guarantee that the light at the end of the tunnel isn't an oncoming train. As the Baker decision made clear, the language of the proposed order is critical to determining whether state and HIPAA requirements are met. Moreover, the Holman court noted that neither state law nor HIPAA requires a health care provider to participate in an ex parte interview. Finally, most jurisdictions empower the trial court with broad discretion to decide whether and to what extent any discovery should be had. Thus, many additional variables factor into whether the interview is authorized and/or will occur.

Broderick Harrell is an attorney with Carlock, Copeland & Stair, LLP in Atlanta, where his practice focuses on professional negligence and premises liability litigation.