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Ex-Parte Interviews
In last month's newsletter, we began a discussion of the appellate decisions in two cases concerned with the propriety of ex-parte physician interviews in the context of medical malpractice litigations. State of Missouri ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. 2010) and Holman v. Rasak, 785 N.W.2d 98 (Mich. 2010). We reported the trial decisions in both of the subject cases last year in this publication. “Dissecting the Latest Pronouncements on Ex-Parte Physician Interviews,” Moncus, J., Medical Malpractice Law & Strategy, April 2010. Having analyzed the Missouri court's opinion in last month's issue, we now turn to Michigan's high court's reasoning in Holman.
No Federal Pre-Emption, So Ex Parte Interviews Are Not Prohibited
At about the same time that Missouri's Supreme Court was deciding whether ex-parte physician interviews should be permitted after the enactment of The Health Insurance Portability and Accountability Act (HIPAA), the Supreme Court of Michigan analyzed the identical issue as well as the same language of Section 164. However, the Michigan court reached the opposite conclusion. In Holman, the supreme court decided that no provision in HIPAA preempted pre-existing Michigan law, and that an enumerated exception to the non-disclosure rule allowed ex parte physician interviews during the course of litigation. To appreciate how the Holman court reached that conclusion, it is necessary to pick up where the Proctor court left off.
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