Update: Courts Still Split on HIPAA and Ex Parte Physician Interviews

As medical malpractice attorneys universally acknowledge, treating physicians often play an important role in the life of a medical malpractice lawsuit. Their testimony is often vital to the success or failure of medical malpractice claims.

Early last year, we discussed in this publication three decisions from lower courts that had the potential to greatly impact and shape the emerging landscape of the HIPAA ex parte interview debate. “Dissecting the Latest Pronouncements on Ex Parte Physician Interviews,” Moncus, J., Medical Malpractice Law & Strategy, April 2010. As of fall 2010, two states' high courts had weighed in on the issue; moreover, the ex parte interview issue was the only issue on appeal in both decisions. (The other case we reported last year, the federal district court decision out of Kansas, Pratt v. Petelin, 2010 WL 446474 (D. Kan. Feb. 4, 2010), was not appealed and is thus not further discussed herein.) While these two state supreme court decisions are widely disparate in their conclusions, together they have significantly narrowed the field of inquiry by focusing on a few key aspects of HIPAA. This article explores both the underpinnings and potential impact of these important rulings.

Background

Congress passed the first HIPAA legislation in 1996, and the Secretary of Health and Human Services issued the final HIPAA “Privacy Rule” in August 2000. HIPAA is an acronym for “The Health Insurance Portability and Accountability Act.” In brief, with the passage of HIPAA, Congress federalized the protection of private health information. The overarching goal of the legislation is to protect the unauthorized disclosure of private heath information and foster a culture of patient privacy among healthcare providers. In general, the “Privacy Rule” refers to the prohibition of disclosure of “protected health information” by “covered entities.” As demonstrated herein, when 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 the U.S. Department of Health and Human Services (HHS), notably, parts 160, 162, and 164 of Subchapter C of Title 45 of the Code of Federal Regulations (CFR).

Prior to the enactment of HIPAA, the question of whether ex parte contact with a plaintiff's treating physician was permissible was entirely a question of applicable state law. Thus, many states developed a body of common law pertaining to the issue, and some states even enacted statutes delineating the proper extent of contact with treating physicians during litigation. By a large measure, HIPAA has changed these regimes. As the new cases discussed demonstrate, HIPAA must now be dealt with, in one form or another. While the public policy debate chiefly centers around the defense's argument of costs savings and full access to all witnesses countered by the patient's argument for privacy, the more important debate centers on the text of HIPAA itself. It is here that these new decisions find purchase.

MO: No Federal Pre-Emption, But Ex-Parte Interviews Still Prohibited

In the April, 2010 Issue of Medical Malpractice Law and Strategy, we examined the decision of the Missouri Court of Appeals for the Western District in State of Missouri ex rel. Proctor v. Messina, holding that HIPAA “harmonized” with Missouri state law to prohibit ex parte physician interviews. 2009 WL 3735919 (Mo. App. W.D. 2009). Now, as a result of an en banc hearing, the Missouri Supreme Court has handed down a decision favoring the Court of Appeals' interpretation on this issue. 320 S.W.3d 145 (Mo. 2010). The analysis of the Missouri Supreme Court largely tracks that of the state's Court of Appeals, with some slight divergences.

First, it is useful to classify the shape of Missouri law prior to the enactment of HIPAA. (This may be particularly constructive as compared with the law of your own jurisdiction for purposes of analysis.) Missouri common law was fairly well developed on the issue of ex-parte physician interviews well prior to HIPAA, with a series of three decisions primarily shaping the landscape of permissible contact with a plaintiff's treating physicians. Common law in Missouri did not prohibit ex parte interviews with a plaintiff's treating physicians once a lawsuit was filed, but courts seemed to “discourage” the practice. However, the law was well settled that a plaintiff could never be compelled to sign a medical authorization consenting to ex parte interviews with his or her treating physicians (State ex rel. Woytus, 776 S.W.2d 389 (Mo. banc 1989)). Thus, if ex parte physician interviews occurred, they occurred voluntarily, outside the supervision of the court, and were not expressly authorized by any rule of court or civil procedure.

It is not particularly controversial that HIPAA's “Privacy Rule” broadly prohibits all disclosures of “protected health information” by health care providers absent an applicable exception. “In HIPAA, Congress directed the Secretary to promulgate rules and regulations designed to ensure the privacy of patients' medical information.” Proctor at 150 (emphasis in original). Thus, in noting that HIPAA “draws no distinction between formal versus informal disclosures,” the Proctor court found that HIPAA clearly “prohibits physicians from engaging in ex parte oral disclosure of a patient's protected health information unless an express exception applies.” HIPAA, then, broadly prohibits ex parte interviews while pre-HIPAA Missouri law did not prohibit such interviews. The various exceptions to the non-disclosure rule, therefore, become of paramount importance.

Given HIPAA's prohibition of communications that Missouri law formerly allowed, the Proctor court engaged in a pre-emption analysis. Of course, HIPAA contains an express pre-emption clause, making the task a bit more straightforward. 42 U.S.C.A. ' 1320d-7(a). In effect, HIPAA (and the accompanying federal regulation) provides that HIPPA pre-empts any “contrary” provision of state law unless the state law at issue is “more stringent” than HIPAA. In turn, the key term ' “contrary” ' is further defined in the Act. In brief, “contrary” means either that: 1) a covered entity would find it “impossible to comply with both the State and federal requirements”; or 2) the state law would stand as “an obstacle to the accomplishment and execution” of HIPAA. 45 C.F.R. ' 160.202.

Applying a pre-emption analysis to pre-existing Missouri law, HIPAA does not pre-empt Missouri common law with respect to ex parte physician interviews because: 1) one can plausibly comply with both HIPAA and Missouri law at the same time; and 2) Missouri law does not stand as an obstacle to the implementation of HIPAA. In other words, because of the nature of pre-existing Missouri law, which “did not affirmatively create a right” to ex parte physician interviews, it is not “contrary” to HIPAA under the definitions provided in the Act. In sum, HIPAA does not pre-empt pre-existing Missouri law

However, the conclusion that HIPAA does not preempt pre-existing Missouri law does not end the inquiry. Though it is clear that HIPAA broadly prohibits ex parte physician interviews, which in turn becomes the prevailing law in the State of Missouri, there still may be an enumerated exception to the general rule of non-disclosure. As it turns out, there are several exceptions to HIPAA's broad general rule, one of which may have special applicability in this setting.

Section 164.512(e)

Of the numerous specific exceptions contained in the Code of Federal Regulations (C.F.R.), Section 164.512(e) is the battleground of the current debate. This non-disclosure exception is entitled “[d]isclosures for judicial and administrative proceedings.” Though simply titled, this 18-provision subsection is far from being simply interpreted. It expressly permits disclosure of otherwise protected health information “in the course of any judicial or administrative proceeding,” in certain enumerated circumstances. 45 C.F.R. ' 164.512(e)(1). First, it permits disclosure “in response to an order of a court or administrative tribunal.” ' 164.512(e)(1)(i). Second, disclosure of protected health information is allowed “in response to a subpoena, discovery request, or other lawful process,” even in the absence of a court order, but only if certain predefined conditions are met. ' 164.512(e)(1)(ii). Without getting too deep into the fine details of these predefined conditions, the Proctor court focused on the language in Subsection (e)(1)(i) and (ii), and found those predefined conditions were not applicable.

As a result, the court found that the ' 164 exception unambiguously allows certain disclosures under certain conditions, but only “in the course of any judicial or administrative proceeding.” Going further into a detailed textual analysis of the phrase itself, the court concluded that an ex parte physician interview ' which is neither provided for in any rule of court, nor ever supervised or sanctioned by any court ' cannot occur “in the course of” a judicial proceeding. Drawing on the language in subsections (i) and (ii), it also seemed clear that an ex parte interview could not be construed as a “response to a subpoena, discovery request, or other lawful process.” While Missouri common law did allow ex parte interviews prior to HIPAA, there was no rule of procedure or rule of court that expressly authorized any right to such an interview; thus, the Proctor court reasoned that there existed no “lawful process” giving rise to such an interview. In sum, the Proctor court held that ex parte interviews were not excepted from HIPAA's broad rule of non-disclosure.

In next month's issue we will discuss how the Supreme Court of Michigan interpreted HIPAA's influence on that state's law concerning ex parte physician interviews.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. He concentrates his practice in the areas of medical malpractice, personal injury, wrongful death, breach of contract, product liability and qui tam litigation under the Federal False Claims Act.

As medical malpractice attorneys universally acknowledge, treating physicians often play an important role in the life of a medical malpractice lawsuit. Their testimony is often vital to the success or failure of medical malpractice claims.

Early last year, we discussed in this publication three decisions from lower courts that had the potential to greatly impact and shape the emerging landscape of the HIPAA ex parte interview debate. “Dissecting the Latest Pronouncements on Ex Parte Physician Interviews,” Moncus, J., Medical Malpractice Law & Strategy, April 2010. As of fall 2010, two states' high courts had weighed in on the issue; moreover, the ex parte interview issue was the only issue on appeal in both decisions. (The other case we reported last year, the federal district court decision out of Kansas, Pratt v. Petelin, 2010 WL 446474 (D. Kan. Feb. 4, 2010), was not appealed and is thus not further discussed herein.) While these two state supreme court decisions are widely disparate in their conclusions, together they have significantly narrowed the field of inquiry by focusing on a few key aspects of HIPAA. This article explores both the underpinnings and potential impact of these important rulings.

Background

Congress passed the first HIPAA legislation in 1996, and the Secretary of Health and Human Services issued the final HIPAA “Privacy Rule” in August 2000. HIPAA is an acronym for “The Health Insurance Portability and Accountability Act.” In brief, with the passage of HIPAA, Congress federalized the protection of private health information. The overarching goal of the legislation is to protect the unauthorized disclosure of private heath information and foster a culture of patient privacy among healthcare providers. In general, the “Privacy Rule” refers to the prohibition of disclosure of “protected health information” by “covered entities.” As demonstrated herein, when 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 the U.S. Department of Health and Human Services (HHS), notably, parts 160, 162, and 164 of Subchapter C of Title 45 of the Code of Federal Regulations (CFR).

Prior to the enactment of HIPAA, the question of whether ex parte contact with a plaintiff's treating physician was permissible was entirely a question of applicable state law. Thus, many states developed a body of common law pertaining to the issue, and some states even enacted statutes delineating the proper extent of contact with treating physicians during litigation. By a large measure, HIPAA has changed these regimes. As the new cases discussed demonstrate, HIPAA must now be dealt with, in one form or another. While the public policy debate chiefly centers around the defense's argument of costs savings and full access to all witnesses countered by the patient's argument for privacy, the more important debate centers on the text of HIPAA itself. It is here that these new decisions find purchase.

MO: No Federal Pre-Emption, But Ex-Parte Interviews Still Prohibited

In the April, 2010 Issue of Medical Malpractice Law and Strategy, we examined the decision of the Missouri Court of Appeals for the Western District in State of Missouri ex rel. Proctor v. Messina, holding that HIPAA “harmonized” with Missouri state law to prohibit ex parte physician interviews. 2009 WL 3735919 (Mo. App. W.D. 2009). Now, as a result of an en banc hearing, the Missouri Supreme Court has handed down a decision favoring the Court of Appeals' interpretation on this issue. 320 S.W.3d 145 (Mo. 2010). The analysis of the Missouri Supreme Court largely tracks that of the state's Court of Appeals, with some slight divergences.

First, it is useful to classify the shape of Missouri law prior to the enactment of HIPAA. (This may be particularly constructive as compared with the law of your own jurisdiction for purposes of analysis.) Missouri common law was fairly well developed on the issue of ex-parte physician interviews well prior to HIPAA, with a series of three decisions primarily shaping the landscape of permissible contact with a plaintiff's treating physicians. Common law in Missouri did not prohibit ex parte interviews with a plaintiff's treating physicians once a lawsuit was filed, but courts seemed to “discourage” the practice. However, the law was well settled that a plaintiff could never be compelled to sign a medical authorization consenting to ex parte interviews with his or her treating physicians (State ex rel. Woytus, 776 S.W.2d 389 (Mo. banc 1989)). Thus, if ex parte physician interviews occurred, they occurred voluntarily, outside the supervision of the court, and were not expressly authorized by any rule of court or civil procedure.

It is not particularly controversial that HIPAA's “Privacy Rule” broadly prohibits all disclosures of “protected health information” by health care providers absent an applicable exception. “In HIPAA, Congress directed the Secretary to promulgate rules and regulations designed to ensure the privacy of patients' medical information.” Proctor at 150 (emphasis in original). Thus, in noting that HIPAA “draws no distinction between formal versus informal disclosures,” the Proctor court found that HIPAA clearly “prohibits physicians from engaging in ex parte oral disclosure of a patient's protected health information unless an express exception applies.” HIPAA, then, broadly prohibits ex parte interviews while pre-HIPAA Missouri law did not prohibit such interviews. The various exceptions to the non-disclosure rule, therefore, become of paramount importance.

Given HIPAA's prohibition of communications that Missouri law formerly allowed, the Proctor court engaged in a pre-emption analysis. Of course, HIPAA contains an express pre-emption clause, making the task a bit more straightforward. 42 U.S.C.A. ' 1320d-7(a). In effect, HIPAA (and the accompanying federal regulation) provides that HIPPA pre-empts any “contrary” provision of state law unless the state law at issue is “more stringent” than HIPAA. In turn, the key term ' “contrary” ' is further defined in the Act. In brief, “contrary” means either that: 1) a covered entity would find it “impossible to comply with both the State and federal requirements”; or 2) the state law would stand as “an obstacle to the accomplishment and execution” of HIPAA. 45 C.F.R. ' 160.202.

Applying a pre-emption analysis to pre-existing Missouri law, HIPAA does not pre-empt Missouri common law with respect to ex parte physician interviews because: 1) one can plausibly comply with both HIPAA and Missouri law at the same time; and 2) Missouri law does not stand as an obstacle to the implementation of HIPAA. In other words, because of the nature of pre-existing Missouri law, which “did not affirmatively create a right” to ex parte physician interviews, it is not “contrary” to HIPAA under the definitions provided in the Act. In sum, HIPAA does not pre-empt pre-existing Missouri law

However, the conclusion that HIPAA does not preempt pre-existing Missouri law does not end the inquiry. Though it is clear that HIPAA broadly prohibits ex parte physician interviews, which in turn becomes the prevailing law in the State of Missouri, there still may be an enumerated exception to the general rule of non-disclosure. As it turns out, there are several exceptions to HIPAA's broad general rule, one of which may have special applicability in this setting.

Section 164.512(e)

Of the numerous specific exceptions contained in the Code of Federal Regulations (C.F.R.), Section 164.512(e) is the battleground of the current debate. This non-disclosure exception is entitled “[d]isclosures for judicial and administrative proceedings.” Though simply titled, this 18-provision subsection is far from being simply interpreted. It expressly permits disclosure of otherwise protected health information “in the course of any judicial or administrative proceeding,” in certain enumerated circumstances. 45 C.F.R. ' 164.512(e)(1). First, it permits disclosure “in response to an order of a court or administrative tribunal.” ' 164.512(e)(1)(i). Second, disclosure of protected health information is allowed “in response to a subpoena, discovery request, or other lawful process,” even in the absence of a court order, but only if certain predefined conditions are met. ' 164.512(e)(1)(ii). Without getting too deep into the fine details of these predefined conditions, the Proctor court focused on the language in Subsection (e)(1)(i) and (ii), and found those predefined conditions were not applicable.

As a result, the court found that the ' 164 exception unambiguously allows certain disclosures under certain conditions, but only “in the course of any judicial or administrative proceeding.” Going further into a detailed textual analysis of the phrase itself, the court concluded that an ex parte physician interview ' which is neither provided for in any rule of court, nor ever supervised or sanctioned by any court ' cannot occur “in the course of” a judicial proceeding. Drawing on the language in subsections (i) and (ii), it also seemed clear that an ex parte interview could not be construed as a “response to a subpoena, discovery request, or other lawful process.” While Missouri common law did allow ex parte interviews prior to HIPAA, there was no rule of procedure or rule of court that expressly authorized any right to such an interview; thus, the Proctor court reasoned that there existed no “lawful process” giving rise to such an interview. In sum, the Proctor court held that ex parte interviews were not excepted from HIPAA's broad rule of non-disclosure.

In next month's issue we will discuss how the Supreme Court of Michigan interpreted HIPAA's influence on that state's law concerning ex parte physician interviews.

James R. Moncus III, a member of this newsletter's Board of Editors, is an attorney at Birmingham, AL's Hare, Wynn, Newell & Newton. He concentrates his practice in the areas of medical malpractice, personal injury, wrongful death, breach of contract, product liability and qui tam litigation under the Federal False Claims Act.