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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.
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