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.

Given pre-existing Michigan law similar to that of Missouri, which held that ex parte physician interviews were “permitted,” the Holman court found that the subsection of HIPAA (A) codified at 45 C.F.R. ' 164.512(e)(1)(ii) also permitted ex parte physician interviews. Recall that this provision states that disclosure is permitted “in the course of any judicial or administrative proceeding” “in response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court,” provided certain conditions are satisfied. Those conditions became very important to the Holman court.

Of the two applicable conditions, subsection (B) is important here. It provides for permitted disclosure as long as the “covered entity receives satisfactory assurance ' that reasonable efforts have been made by such party to secure a qualified protective order ' .” “Satisfactory assurance” is further defined as receipt of a “written statement and accompanying documentation demonstrating that” either: 1) “the parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal”; or 2) “[t]he party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.” Under either condition ' (1) or (2) ' the Holman court concluded that an ex parte physician interview was permissible and was effectively “in the course of a judicial proceeding” as well as “in response to ' other lawful process.” Thus, in Michigan, an ex parte physician interview may be accomplished assuming the following conditions are present: 1) there is pending litigation; 2) the defendant and/or its attorneys have requested a protective order from the court; and 3) the defendant and/or its attorneys have notified the treating physician sought to be interviewed of the same in writing with appropriate supporting documentation. The specific details of what it takes to “request[] a qualified protective order” are not expounded upon. Further absent is any specific factual discussion of what conduct the parties engaged in prior to the dispute. It is noteworthy that two Holman justices dissented, with Justice Hathaway providing a well-reasoned and comprehensive epistle outlining perceived missteps in the majority's analysis.

Nevertheless, the majority seized on the exception language of ' 164.512(e), purportedly allowing disclosure pursuant to “lawful process” if the party had also made reasonable efforts to secure an appropriate protective order. Even forgiving the specific factual details notably absent from the opinion, the criticism of this logic is of course that it begs the question of whether such ex parte interview is “in the course of” a “judicial proceeding” and/or pursuant to “other lawful process.” While the decision discusses very few specific facts of the case, and what exactly it takes to qualify under the exception, it certainly leaves open the possibility that an ex parte interview may occur with certain constraints in accord with subsection (e).

Conclusion

While the pre-existing common law of each state is undoubtedly important to consider when deciphering HIPAA's constraints on ex parte physician interviews, a court's interpretation of the exception contained within subsection (e) is even more fundamental to the task. The decisions of the Missouri and Michigan supreme courts illustrate divergent approaches and competing arguments in interpreting this important exception, titled “[d]isclosures for judicial and administrative proceedings.” The debate will likely continue, but one thing is clear: Practitioners must be attentive and careful to guard against potential HIPAA violations when seeking ex parte interviews with treating physicians.

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.

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.

Given pre-existing Michigan law similar to that of Missouri, which held that ex parte physician interviews were “permitted,” the Holman court found that the subsection of HIPAA (A) codified at 45 C.F.R. ' 164.512(e)(1)(ii) also permitted ex parte physician interviews. Recall that this provision states that disclosure is permitted “in the course of any judicial or administrative proceeding” “in response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court,” provided certain conditions are satisfied. Those conditions became very important to the Holman court.

Of the two applicable conditions, subsection (B) is important here. It provides for permitted disclosure as long as the “covered entity receives satisfactory assurance ' that reasonable efforts have been made by such party to secure a qualified protective order ' .” “Satisfactory assurance” is further defined as receipt of a “written statement and accompanying documentation demonstrating that” either: 1) “the parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal”; or 2) “[t]he party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.” Under either condition ' (1) or (2) ' the Holman court concluded that an ex parte physician interview was permissible and was effectively “in the course of a judicial proceeding” as well as “in response to ' other lawful process.” Thus, in Michigan, an ex parte physician interview may be accomplished assuming the following conditions are present: 1) there is pending litigation; 2) the defendant and/or its attorneys have requested a protective order from the court; and 3) the defendant and/or its attorneys have notified the treating physician sought to be interviewed of the same in writing with appropriate supporting documentation. The specific details of what it takes to “request[] a qualified protective order” are not expounded upon. Further absent is any specific factual discussion of what conduct the parties engaged in prior to the dispute. It is noteworthy that two Holman justices dissented, with Justice Hathaway providing a well-reasoned and comprehensive epistle outlining perceived missteps in the majority's analysis.

Nevertheless, the majority seized on the exception language of ' 164.512(e), purportedly allowing disclosure pursuant to “lawful process” if the party had also made reasonable efforts to secure an appropriate protective order. Even forgiving the specific factual details notably absent from the opinion, the criticism of this logic is of course that it begs the question of whether such ex parte interview is “in the course of” a “judicial proceeding” and/or pursuant to “other lawful process.” While the decision discusses very few specific facts of the case, and what exactly it takes to qualify under the exception, it certainly leaves open the possibility that an ex parte interview may occur with certain constraints in accord with subsection (e).

Conclusion

While the pre-existing common law of each state is undoubtedly important to consider when deciphering HIPAA's constraints on ex parte physician interviews, a court's interpretation of the exception contained within subsection (e) is even more fundamental to the task. The decisions of the Missouri and Michigan supreme courts illustrate divergent approaches and competing arguments in interpreting this important exception, titled “[d]isclosures for judicial and administrative proceedings.” The debate will likely continue, but one thing is clear: Practitioners must be attentive and careful to guard against potential HIPAA violations when seeking ex parte interviews with treating physicians.

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.