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Law, HIPAA does not probihit ex-parte contact with non-expert physicians in medical malpractice cases

medical malpracticeIn cases involving injuries to a person, a plaintiff must establish the four traditional elements of negligence – duty, breach of duty, damages, and causation – by a preponderance of the evidence. This typically requires some type of medical evidence, including expert testimony concerning the nature, extent, and cause of the injuries at issue. In addition to the medical evidence offered by the plaintiff in support of his or her case, a defendant may also wish to discover additional information about the plaintiff’s medical treatment.

Prior to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), it was a common practice for the litigants in personal injury cases, including medical malpractice cases, to conduct ex parte interviews with the plaintiff’s doctors in order to determine whether a deposition, which is considerably more costly than a mere interview, was necessary in a given case. Since HIPAA, however, many state and federal courts have been called upon to determine whether this one-sided, informal discovery is still acceptable.

The Facts of the Case

In the recent case of Caldwell v. Chauvin, the Kentucky Supreme Court was called upon to decide HIPAA’s application to the practice of ex parte interviews with plaintiff’s treating physician. The plaintiff in the case was a woman who filed a medical malpractice lawsuit against a doctor who, she alleged, negligently performed an unnecessary spinal surgery on her, causing her nerve damage and restricted mobility.

During discovery, the defendant doctor filed a motion in the trial court seeking a qualified protective order that would permit him to make ex parte contacts with the plaintiff’s healthcare providers. The trial court entered an order that limited the scope of defense counsel’s permissible ex parte contacts to the doctors who treated the plaintiff for the injuries that were the subject matter of her lawsuit. The trial court’s order went on to expressly decline to authorize the disclosure of the plaintiff’s health information.

Proceedings before the Intermediate Court

The plaintiff filed a petition for a writ of prohibition and a motion for intermediate relief’ with the Kentucky Court of Appeals. The court declined to issue the writ, holding that Kentucky law did not prohibit the trial court from authorizing ex parte correspondence with nonexpert treating physicians and that the trial court’s order did not violate any right that the plaintiff may have to the privacy of her medical information because the order did not compel any such disclosure.

Before the Kentucky Supreme Court

On appeal to the state’s highest court, the plaintiff argued that the trial court erred because communications with treating physicians should be treated as privileged; because the American Medical Association’s Code of Medical Ethics prohibits the nonconsensual disclosure of confidential information; and because prior Kentucky case law prohibits trial courts from authorizing defense counsel to communicate with a plaintiff’s treating physicians ex parte. The plaintiff also alleged (and was supported in her argument by amicus Kentucky Justice Association) that HIPAA prohibits the ex parte meetings that the plaintiff sought to prevent via writ.

Upon consideration, the court concluded that, while the order at issue did not comply with 45 C.F.R. § 164.512(e)(1)(i), and any disclosures made during ex parte interviews authorized by the order would be in violation of HIPAA, the order was explicit in its failure to authorize disclosure, and its grant of permission allowing defense counsel to seek ex parte interviews with the plaintiff’s physicians was not necessary to authorize this practice. Therefore, the court found that the challenged order accurately recited the law pertaining to ex parte interviews with the opposing party’s treating physicians and thus did not merit an extraordinary writ of prohibition.

To Get Advice about Your Injury Case

The law is ever evolving. If you or a family member needs current legal advice about a truck accident, car accident, nursing home negligence matter, or pharmaceutical product case, call the knowledgeable and experienced injury attorneys at English, Lucas, Priest, and Owsley at 270-781-6500 for a free initial consultation. We represent clients throughout Kentucky and Tennessee, including in Bowling Green, Hopkinsville, and Nashville.

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