HIPPA and interviews: pre-emption or red herring?

• Author: Parker, Bruce R.
• Position: Health Insurance Portability and Accountability Act of 1996

Writing in the December newsletter of the Drug, Device and Biotech Committee, Bruce R. Parker and D.S. Gray of Venable, Baetjer & Howard, Baltimore, look at HIPPA's effect on ex parte interviews with plaintiffs' treating physicians:

Informal interviews with key witnesses are a valuable component in preparing an effective defense in litigation. This is particularly true with ex parte interviews of treating physicians. Approximately 21 states still permit defense counsel in cases where plaintiffs have put their medical and/ or emotional health in issue to conduct informal interviews of consenting treating physicians. Such interviews spare defendants of the cost of formal discovery and provide defense counsel with a more candid assessment of the plaintiffs' medical condition.

See John Jennings, The Physician-Patient Relationship: The Permissibility of Ex Parte Communications between Plaintiff's Treating Physicians and Defense Counsel, 59 MO. L. REV. 441, 454 & n.77 (1994); J. Christopher Smith, Recognizing the Split: The Jurisdictional Treatment of Defense Counsel's Ex Parte Contact with Plaintiff's Treating Physician, 23 J. LEGAL PROF. 247, 252-55 (1998-99); see also Butler-Tulio v. Scroggins, 774 A.2d 1209, 1225 (Md.App.) ("There is, however, no such prohibition in Maryland against what appellant describes as 'ex parte contacts' between a lawyer and the treating physician of an adverse party who has placed her medical condition in issue."), cert. denied, 783 A.2d 221 (Md. 2001).

It appears that the plaintiffs' bar in jurisdictions that permit ex parte interviews have started a campaign of threatening physicians and hospitals with litigation for allegedly violating the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. [subsection] 1320(d), et seq. As a result, some hospitals are beginning to adopt policies prohibiting ex parte interviews. What is the legal basis for the plaintiffs' new strategy? What are the ethical implications of the approach? What steps should defense counsel take to protect their rights to ex parte interviews, notwithstanding HIPAA and the accompanying Privacy Regulations promulgated by the U.S. Department of Health and Human Services (DHHS), 45 C.F.R. [subsection] 160 et seq.

Extent of HIPPA and regs

HIPAA and the regulations literally extend to "any" use or disclosure of the main topic of ex parte interviews--that is, "protected health information," known as PHI. According to the regulations, 45 C.F.R. [section] 160.103, PHI includes any information, whether oral or recorded in any form or medium, that: (1) is created or received by a healthcare provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse, and (2) relates to the past, present, or future physical or mental health or condition of an individual; the provision of healthcare to an individual; or the past, present, or future payment for the provision of healthcare to an individual.

Because of the breadth of this definition, topics often covered during ex parte interviews arguably are included. If this was the purpose of HIPAA or the Privacy Regulations, Congress and the DHHS used unconventional means to express this intention. HIPAA, the regulations and the accompanying history of both do not even address ex parte interviews. This silence has led the New Jersey Superior Court to find that HIPAA and the regulations do not pre-empt state law permitting ex parte interviews. In re PPA Litigation, 2003 WL 22203734 (N.J. Super. September 23, 2003) (unpublished opinion).

The court nonetheless banned ex parte interviews in that case because of the number of plaintiffs and administrative hurdles. The unique facets of New Jersey law also may make PPA Litigation distinguishable in jurisdictions that allow unfettered ex parte interviews and do not require notice for such interviews. Until the courts, Congress or the DHHS untangle this Gordian knot, defense counsel in jurisdictions that allow ex parte interviews should provide notice to plaintiffs' counsel and shift the burden to plaintiffs to exert their HIPAA rights through a formal motion for a protective order.

Varying perspectives

The common law provides no confidentiality to communications between physicians and patients. Felder v. Wyman, 137 F.R.D. 85, 87 (D. S.C. 1991). Over the last 100 years, however, legislation and court decisions have sanctified the physician-patient relationship in many states. Jurisdictions are now fairly evenly divided on whether counsel may pierce the confidentiality of this relationship with ex parte interviews. How a jurisdiction assesses ex parte interviews often depends on balancing the plaintiffs' right to privacy and the defendants' unqualified right to evidence.

In Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D. D.C. 1983), the court stated, "[T]here are entirely respectable reasons for conducting discovery by interview vice deposition: it is less costly and less likely to entail logistical or scheduling problems; it is conducive to spontaneity and candor in a way depositions can never be; and it is a cost-efficient means" of learning information from non-essential witnesses without deposing them at all.

In the pre-HIPAA litigation environment, if treating physicians voluntarily discussed plaintiffs' medical treatment with defense counsel and counsel narrowly tailored any conversations to the medical conditions for which the plaintiffs sought recovery, such conversations would not have compromised any privacy rights in many jurisdictions. See, e.g., Shots v. CSX Transportation, 887 F.Supp. 206, 208 (S.D. Ind. 1995) ("Where the plaintiff does not suggest that any other medical condition exists which merits protection from disclosure, the policy considerations which protect the physician-patient relationship can safely be subverted to those policy considerations which expedite the discovery process."); Alston v. Greater S.E. Community Hospital 107 F.R.D. 35, 37 n.2 (D. D.C. 1985) ("[B]y bringing an action ... a plaintiff waives the physician-patient privilege, but only to the extent that attending physicians may be required to testify on pretrial deposition with respect to the injuries sued upon."); Butler-Tulio v. Scroggins...