HIPPA Limits “Ex Parte” Meetings
with Plaintiff’s Physicians
A recurring concern in personal injury cases is that defense counsel will have “ex parte” meetings with plaintiff’s treating physicians without providing the plaintiff any notice or opportunity to object. For years, the plaintiff’s bar has maintained that such meetings are an inappropriate invasion of the confidential relationship between physician and patient. The defense bar, on the other hand, has argued that the waiver of the physician-patient privilege for personal injury actions contained in K.S.A. § 60-427 (or similar state privilege statutes) removes any barrier to “ex parte” meetings once the plaintiff’s physical condition is at issue. HIPAA’s “Privacy Rule,” which went into effect on April 14, 2003, has rendered the argument moot.
The “Privacy Rule” sets forth standards and procedures for the collection and disclosure of “protected health information.” See 45 C.F.R. §§ 160 et. seq., 164 et. seq.; 65 Fed. Reg. 82462 (Dec. 28, 2000). It supercedes and preempts any contrary provision of state law with only limited exceptions. See 42 U.S.C. § 1320d-7(a)(1) & (2). Except where state law provides “more stringent” protections, the Privacy Rule limits the ability of a health care provider to meet “ex parte” with a defendant’s lawyer and establishes the minimum amount of protection to which a patient is entitled. 45 C.F.R. § 160.203(b).
What does the “Privacy Rule” require? The answer is that a patient must be afforded notice of any intended “ex parte” communications and be given an opportunity to object. One court explained the effect of the “Privacy Rule” as follows:
The recently enacted HIPAA statute has radically changed the landscape of how litigators can conduct informal discovery in cases involving medical treatment ... Counsel should now be far more cautious in their contacts with medical fact witnesses when compared to other fact witnesses to ensure that they do not run afoul of HIPAA’s regulatory scheme. Wise counsel must now treat medical witnesses similar to the high ranking corporate employee of an adverse party.
Law v. Zuckerman, No. CIV. A. CBD-01-1429, 2004 WL 438327, at *5 (D. Md. Feb. 27, 2004) (emphasis added). Of course, if a patient explicitly authorizes “ex parte” contacts, he or she cannot object thereto. Absent an express authorization, however, a defendant’s lawyer who contacts a treating physician “ex parte” runs the risk of sanctions for violating HIPAA, and may expose the unwitting health care provider to liability for disclosing protected health information. |
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Steve Six
Appointed
District Judge
Congratulations to our friend and former partner, Steve Six, on being appointed by governor Kathleen Sebelius as a District Judge in Douglas County, Kansas. Though we will miss him, we know Steve will be an exceptional judge and will serve the people of Douglas County with the same distinction and commitment he consistently provided to our firm’s clients. |
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