Court: HIPAA Doesn’t Bar Ex Parte Interviews of Treating Physicians

By Terese Farhat, Esq.

On October 28, 2013, Judge David M. Lawson of the U.S. District Court for the Eastern District of Michigan in the case Thomas v. Ontario granted, in part, a motion for a qualified protective order allowing ex parte interviews by defense counsel of a Plaintiff's treating physicians in a personal injury action.

Thomas is a personal injury case resulting from an automobile accident. The Plaintiff alleged that he sustained injuries in an automobile accident involving the Defendant’s trucking company and truck driver. The Defendants filed a motion for a qualified protective order so they could obtain the Plaintiff’s medical records and conduct ex parte interviews of Plaintiff’s treating medical providers.

The Court noted that there is a medical privilege under Michigan law; however, the physician-patient privilege is waived if “the patient brings an action against any defendant to recover for any personal injuries, ... and the patient produces a physician as a witness in the patient’s own behalf who has treated the patient for the injury ...” While Michigan courts have held that defense counsel may conduct ex parte interviews with a plaintiff’s treating physician, these interviews were permitted only after the Plaintiff waived the physician-patient privilege.

Additionally, Michigan courts have held that HIPAA does not preempt Michigan law because it is possible to comply with both state and federal laws. In fact, one court held that HIPAA does not preempt Michigan law because Michigan law is “more stringent” than HIPAA in prohibiting disclosure of health information. In Thomas, however, the Court held that Michigan law is not "more stringent" than HIPAA and, as a result, HIPAA supersedes Michigan law. The Court noted that unlike Michigan law, HIPAA does not allow for automatic waiver of the physician-patient privilege, nor does it allow “unfettered” access to a patient’s medical providers to conduct ex parte interviews when a lawsuit is filed.

However, HIPAA does permit a health care provider to disclose protected health information (PHI) without the patient’s authorization under certain circumstances. Specifically, the Court noted that HIPAA allows for the disclosure of PHI for purposes of judicial and administrative proceedings, including where a physician receives "satisfactory assurances" from the party seeking the information that reasonable efforts have been made to secure a qualified protective order and the patient has been given notice that the request for information has been made.

The Court in Thomas was supportive of the general proposition that litigants should be allowed access to interview medical providers who may be witnesses or have information relevant to plaintiff’s claimed injuries. Given that the Plaintiff in Thomas failed to offer reasons as to why access to his treating medical providers should be restricted, the Court ordered that the Defendants were entitled to all of the relevant medical records, which they could obtain by subpoena with notice to the Plaintiff as required by HIPAA. Furthermore, the Court ordered that defense counsel could interview potential medical witnesses who treated the Plaintiff subject to the limitations of a qualified protective order.

As a result of the Thomas decision, the following requirements should be considered when drafting a protective order permitting ex parte interviews: (1) the protective order should prohibit the party seeking access to the health information from disclosing PHI outside of the litigated matter; (2) the protective order should require the party seeking access to the health information to return or destroy the PHI at the conclusion of the litigated matter; and (3) the protective order should require that the party seeking access to the health information provide “clear and explicit” notice to plaintiff’s treating physicians about the purpose of the interview and the physician is not required to speak to that party’s counsel.

In situations where health care providers are asked to be interviewed by a party in a judicial or administrative case, providers should ensure that they are in compliance with HIPAA before sharing any health information involving their patients.

The final omnibus rule (Final Rule) issued on January 25, 2013, by the U.S. Department of Health and Human Services modified the HIPAA Privacy, Security and Enforcement Rules. The Final Rule expanded the patient privacy rights and health care provider obligations under HIPAA. As a result, providers should ensure that they are compliant with the new, additional requirements and continue to stay updated regarding the HIPAA regulations.