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Ex Parte Interviews Allowed in Michigan

The Supreme Court of Michigan recently ruled that ex parte interviews are consistent with HIPAA regulations, provided that reasonable efforts have been made to secure a qualified protective order that meets the requirements of 45 CFR 164.512(e)(1)(v). Holman v. Rasak, 2010 Mich. LEXIS 1446 (Mich. July 13, 2010)

In Michigan, defense counsel in a medical malpractice action is permitted to seek an ex parte interview with a plaintiff's treating physician once the plaintiff has waived the physician-patient privilege with respect to that physician. If the plaintiff names a physician as an expert on his/her own behalf, the privilege with respect to that physician will be considered waived.

The HIPAA Privacy Rule addresses the use and disclosure of an individual's protected health information by organizations deemed "covered entities". It provides that a covered entity may not use or disclose protected health information without a written authorization from the individual.

The subject of this decision was whether allowing ex parte interviews under a qualified protective order is inconsistent with HIPAA regulations. The Court stated that the HIPAA regulations were not intended to disrupt current practice whereby a plaintiff who has put his or her medical condition at issue will not prevail without consenting to the production of his or her protected health information. Further, HIPAA makes no express mention of ex parte interviews.

The Court ruled that, provided defense counsel makes reasonable effort to obtain a qualified protective order compliant with 45 CFR 164.512(e)(1)(v), an ex-parte interview with a plaintiff's treating physician is consistent with HIPAA regulations. 45 CFR 164.512(e)(1)(v) provides as follows:

45 CFR 164.512(e)(1)(v): For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:

(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and

(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.

An attorney who wishes to contact a plaintiff's physician must first obtain a valid HIPAA authorization or a court or administrative order, or must issue a subpoena, discovery request or other lawful process with satisfactory assurances relating to either notification or a qualified protective order.

A covered entity under HIPAA is permitted to disclose protected health information in response to an order of a court or administrative tribunal or in response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal if:

The covered entity receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request, or

The covered entity receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order.

The Court pointed out that HIPAA does not require a trial court to grant a motion for a protective order. A trial court retains its discretion under MCR 2.302(C) to issue protective orders and to impose conditions on ex-parte interviews. Additionally, nothing in either HIPAA or Michigan law requires a covered entity to agree to an informal ex parte interview with defense counsel, or to disclose protected health information during such an interview.

If you have any questions or would like a consultation on these issues, please call Paluda, PC at 248-740-0203.