HIPAA: Its Impact on Ex Parte Disclosures With an Adverse Party's Treating Physician

• Author: Andrew King
• Position: J.D., Capital University Law School, 2006
• Pages: 775-814

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Introduction

In all personal injury actions, the testimony of the plaintiffs treating physician is critical. The plaintiffs treating physician often stands in the best position to speak about the effect that the injury has had on the plaintiff, explain how the plaintiffs future will be impacted by the injury, and discuss the past and future treatment required by the plaintiff.¹ These reasons, among others, make it a matter of course for both plaintiffs' and defendants' counsel to seek detailed information from the treating physician in the form of testimony or reports. The success of the plaintiffs action may rise and fall on the information provided by the treating physician.²

The plaintiffs attorney has easy access to the treating physician and his or her records because the client will often give his attorney all of the authorizations and waivers required to prosecute his or her claim.³ The defendant's attorney, however, does not have the same ready access to the plaintiffs treating physician.⁴ In an effort to overcome this disparity of access, many defense attorneys rely on the use of ex parte⁵ interviews of the plaintiffs treating physician to obtain this information.⁶

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The Health Insurance Portability and Accountability Act of 1996⁷ (HIPAA) has a significant impact upon defense counsel's ability to conduct ex parte interviews of the plaintiffs treating physician.⁸ Although HIPAA was not primarily enacted by Congress to be a federal medical privacy act,⁹ the privacy aspect may be the most far-reaching and broadly impacting part of this legislation. In fact, the regulations promulgated by the Department of Health and Human Services (DHHS), not the legislation itself, are the source of nearly all the federal patient privacy protections now given to a patient's health information.¹⁰ These regulations set forth a comprehensive scheme for the disclosure of patient health information, including the use of such information in a judicial proceeding.¹¹ The impact of these regulations is extremely far-reaching because the regulations are implicated any time evidence of a plaintiffs medical condition is at issue,¹² such that the regulations must be taken into account in both state and federal court proceedings.¹³

In the case of the defendant's counsel, the impact that these regulations have on the continued propriety of ex parte interviews is an important consideration. This Comment concludes that ex parte interviews are no longer a proper means of obtaining a plaintiffs health information from the treating physician, and the failure to discontinue the use of ex parte interviews may result in both criminal and civil sanctions.

Part I will briefly discuss how states have addressed the appropriateness of ex parte interviews, and will also discuss some of the methods that the states have used to protect a patient's privacy. Part II will then analyze HIPAA and its supporting regulations, specifically as they relate to ex parte interviews, as well as discuss the few cases that have addressed this issue. Part III will discuss remedies available to a plaintiffPage 777 for a violation of HIPAA, as well as examine HIPAA's impact on the law of privileges.

I State Rules Before HIPAA

A Introduction

An examination of the states' rules governing ex parte interviews is still advisable for a defendant's attorney. HIPAA's preemption is limited in that the rules are a minimum standard that must be observed in all states-i.e., more stringent state rules remain effective.¹⁴ A defense attorney must be sure that his or her actions are not only compliant with HIPAA but also with any more stringent state law.¹⁵ For example, HIPAA may permit a practice that state law forbids, and under HIPAA's limited conflict preemption provision, counsel must obey the state law.

Reviewing potentially applicable state laws has three purposes: (l)to determine if the law has been preempted or if it should still be obeyed; (2) to determine the scope of waiver of privilege; and (3) to determine any possible state causes of actions for breach of patient confidentiality. Because the possibility exists that a state law may be more stringent than HIPAA regarding ex parte interviews, a brief examination of the state laws regarding ex parte interviews is necessary.

B Introduction to State Laws Regarding Ex Parte Interviews

Before HIPAA and its supporting regulations, there was no uniform national approach to the protection of health information.¹⁶ Each state crafted protections in a variety of ways, but in almost all cases, the protections to a patient's health information evolved slowly.¹⁷ Within a given state, the laws were subject to both change and varying interpretations.¹⁸ Naturally, the scope of protection varied greatly from state to state, with certain aspects of patient privacy being given more protection than others.¹⁹ One area of patient privacy that has recently beenPage 778 litigated throughout many states is the question of the appropriateness of a defense attorney's ex parte interview of the plaintiffs treating physicians.²⁰

In many personal injury lawsuits, the defendant's attorney will want to conduct ex parte interviews with the plaintiffs treating physicians.²¹ Due in part to its informal process, defense attorneys believe that ex parte interviews are a necessary and cost-effective means of defending their client's interests.²² Plaintiffs' attorneys, on the other hand, contend that these interviews constitute a violation of the physician-patient confidential relationship.²³ Plaintiffs' attorneys dislike these interviews because they are conducted without the advance knowledge of the plaintiff and are outside of the usual discovery process with its applicable rules.²⁴

Because there are compelling arguments on both sides, many states that have grappled with the appropriateness of these interviews have differing views.²⁵ Many states have some form of protection for patient health information; the question in litigation is therefore whether the scope of the protections offered by the state permits ex parte interviews.²⁶ The traditional basis for protecting patient information is rooted in either privilege or confidentiality.²⁷ Naturally, those are the areas of the law most often used in an attempt to judge the appropriateness of ex parte interviews.²⁸ Other areas of consideration include the rules of civil procedure, professional codes of conduct, and statutes.²⁹

The drafters of HIPAA's regulations recognized that the states have long been protecting the privacy interests of its citizens.³⁰ In the minds of the drafters, however, these protections of privacy were found insufficient to protect health information when it is transmitted, stored, and accessedPage 779 electronically.³¹ Under HIPAA, all state protections grounded in confidentiality may be preempted,³² but the drafters explicitly intended to leave the law of privileges untouched.³³ As a result, it is arguable that HIPAA's preemption may be divided between privilege and confidentiality, preempting the latter but not the former.³⁴ While this is true in both theory and limited practice, the impact of HIPAA's procedural requirements is to preempt less stringent state procedural methods relating to disclosure of protected health information, including procedures permitting disclosure under a waiver of privilege theory.³⁵

Although the stated intent was not to modify privileges, and HIPAA does little to change the nature of physician-patient testimonial privilege, HIPAA does impact the manner and extent of disclosure of "protected health information."³⁶ In most instances, "protected health information" will also be privileged information. This occurs because HIPAA will affect some of the "procedural" aspects of disclosure of such information pretrial even though HIPAA will not impact the substantive nature of privileges.³⁷

The key determination in evaluating state laws protecting patient privacy is that more stringent laws are not preempted.³⁸ In comparing state laws, whether rooted in privilege or confidentiality, defense counsel should take special care to evaluate which law is more stringent, and, therefore, should be followed. Keeping in mind that HIPAA establishes a minimum floor, this comparison should focus on whether the state laws offer more protection than HIPAA.

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II HIPAA

A Introduction

At its core, HIPAA is not a privacy statute; rather, its primary purpose is to "improve the ... efficiency and effectiveness of the health care system, by encouraging the development of a health information system through the establishment of standards and requirements for the electronic transmission of certain health information."³⁹ In order to achieve those ends, Congress required that the DHHS develop and promulgate regulations relating to the standards and protections of health information.⁴⁰ Although it was not Congress's sole, or even primary, intent to protect the privacy of certain health information, it was recognized that...