Ex parte, s'il vous plait?

Parties can interview treating doctors without additional consent

By Brian Frasier, Esq.

Defense counsel can talk to a plaintiff's treating physician ex parte so long as the defendant makes reasonable efforts to obtain a protective order compliant with the Health Insurance Portability and Accountability Act (HIPAA), the Michigan Supreme Court held.

However, nothing requires the doctor to consent to such an interview.

"I think it is a reiteration of the fact that these interviews have been an accepted type of informal discovery in Michigan for several decades," said Julie McCann O'Connor, of O'Connor, DeGrazia, Tamm & O'Connor, P.C. "[It's also] a reinforcement of the idea that the Supreme Court said in [Domako v. Rowe (438 Mich 347)], that nobody is more entitled to a witness than the other party once there has been a waiver that access to information shouldn't be restricted."

In Holman v. Rasak (Lawyers Weekly No. 06-73626, 39 pages), a wrongful-death, medical-malpractice suit, Mark Rasak's attorney sought an ex parte interview with one of the treating doctors of the deceased, Linda Clippert.

Clippert's personal representative, Andrea Holman, had signed a HIPAA-compliant release of medical records, but did not for oral communications with Clippert's doctors. Rasak asked the court for a protective order, but the motion was denied by Oakland County Circuit Judge John J. McDonald, who held that HIPAA does not authorize ex parte oral interviews.

The Court of Appeals reversed McDonald's decision, holding that HIPAA does not exclude oral communication from protected health information regulations.

The Michigan Supreme Court affirmed in a 5-2 decision.

The majority opinion, written by Justice Maura D. Corrigan, determined that defense counsel was entitled to the ex parte interview under Michigan law, citing Domako and MCL 600.2157, before considering whether the federal regulations preempted the Michigan rules.

"We hold that HIPAA does not preempt Michigan law permitting ex parte interviews because Michigan law is not ‘contrary' to HIPAA ...," Corrigan wrote.

She cited Arons v. Jutkowitz (850 NYS2d 245), a New York state court decision that concluded that HIPAA "merely superimposed procedural requirements" upon that state's discovery rules relating to ex parte interviews.

"Because it is possible for defense counsel to insure that any disclosure of protected health information by the covered entity complies with 45 CFR 164.512(e) by making ‘reasonable efforts' to obtain a qualified protective order, HIPAA does not preempt Michigan law concerning ex parte interviews," she wrote.

But the fact HIPAA doesn't preempt Michigan law doesn't remove the court's authority pertaining to medical discovery.

"We emphasize that while we have been asked in this case to decide whether HIPAA permits defense counsel to seek an ex parte interview with a plaintiff's treating physician, [the statute] is directed at [medical providers], not parties or trial courts," Corrigan wrote. "HIPAA does not require a trial court to grant a motion for a protective order. Therefore, a trial court retains its discretion under MCR 2.302(C) to issue protective orders and to impose conditions on ex parte interviews."

Corrigan also wrote that nothing requires the doctor to agree to talk with opposing counsel.

Justice Diane M. Hathaway dissented, arguing that HIPAA only allows release of protected health information in specific enumerated circumstances, and oral ex parte interviews are not one of them.

She also argued the majority opinion allows an ex parte interview to happen even if the trial court denied a protective order, so long as the party made "reasonable efforts" to obtain the order.

"The majority's ‘reasonable efforts' analysis can only mean that a request could be incompletely made, or denied by the trial court altogether, and an interview could still take place," Hathaway wrote. "Either of these results would be absurd. This analysis and conclusion are completely at odds with our court rules and completely undermine the authority of trial courts to enforce the court rules, or even their own orders."

Justice Elizabeth A. Weaver wrote that she understood the merits of both arguments, and was more persuaded by Hathaway's dissent.

O'Connor, who represented Rasak, said that, prior to HIPAA, attorneys weren't required to get authorization for such interviews.

"It was an informal type of discovery that defendants engaged in," she said. "But with these regulations, it really has changed the landscape in terms of being able to obtain disclosure of information."

In order to comply with both HIPAA and Michigan law, O'Connor said you have to go through HIPAA's procedural requirements.

"It's not terribly onerous," she said. "It's basically two things: you can get a court order, or attempt to get one, that specifies exactly what information can be disclosed, or you can provide satisfactory assurances that reasonable efforts have been made to secure a qualified protective order," which requires you use the information for litigation only and return it when litigation is over.

She said Hathaway is correct in that the decision doesn't require the defense actually get a protective order, but that, in practice, "a covered entity is not going to talk to you under most circumstances unless they have a qualified protective order."

Cannonsburg-based solo attorney Eugenie B. Eardley said the problem with allowing an ex parte communication with a client's treating doctor is that there are no safeguards in place to make sure the conversation stays on topic.

"In that context, if there are no limitations in place at all, what those attorneys do is, they ask anything and everything they can think of that go well beyond what's relevant in the case," she said. "They may start leaking into family members and other issues that have nothing to do with the case."

It also gives them an opportunity to pitch their version of the defense and the facts in an attempt to "win over" the treating doctor, she said.

Eardley disagreed with the argument that it's not fair if she can talk to the physician if the defense counsel can't.

"It is fair in the sense that it's my client's treating physician, and often times, it still is," she said. "That doctor is in a very different role than a fact witness in an ER who happened to see them two years earlier."

Holman's attorney, Joseph L. Konheim of Blum, Konheim, Elkin & Ceglarek, couldn't be reached for comment for this story.

If you would like to comment on this story, please contact Brian Frasier at (248) 865-3113 or brian.frasier@mi.lawyersweekly.com.

Decision in a Nutshell

The Case: Holman v. Rasak (Lawyers Weekly No. 06-73626, 39 pages).

The Facts: Defendant sought to speak to one of the decedent's treating physicians ex parte. Plaintiff refused. The trial court said the Health Insurance Portability and Accountability Act (HIPAA) does not authorize oral communications.

The Decision: HIPAA is not contrary to Michigan law, and therefore, does not preempt it.

From the Decision: "We hold that HIPAA does not preempt Michigan law permitting ex parte interviews because Michigan law is not ‘contrary' to HIPAA under either definition of that term. Michigan law is not ‘contrary' to HIPAA under the first definition because it is possible for a covered entity to comply with both Michigan law and HIPAA."

From the Dissent: "The majority's ‘reasonable efforts' analysis can only mean that a request could be incompletely made, or denied by the trial court altogether, and an interview could still take place. Either of these results would be absurd. This analysis and conclusion are completely at odds with our court rules and completely undermine the authority of trial courts to enforce the court rules, or even their own orders."

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