By Andrew Burnett and Alicen Jobes

            Inevitably, in every medical malpractice case the defense files a motion with the court to have ex-parte communications with your client’s treating physicians. They claim the plaintiffs have “an unfair advantage,” and they simply “cannot appropriately prepare a defense to plaintiff’s allegations of negligence” without secretly speaking to the client’s healthcare providers. This could not be further from the truth. The simple truth is defense counsel wants unfettered access to the treating physicians so they can “circle the wagons” and feed the treating physician the talking points expected to be shoveled by their hired guns. Before defeating these back-alley dealings, one must know the applicable law.

 

The Health Insurance Portability and Accountability Act of 1996 (HIPAA)

In recognition of the importance of protecting the privacy of health information in the midst of the rapid evolution of computerized health information systems, Congress passed HIPAA in 1996 requiring the Department of Health and Human Services (“HHS”) create standards and regulations for the maintenance and transmission of individual health information.[i] Pursuant to HIPAA, HHS adopted regulations providing that “[a] covered entity may not use or disclose protected health information.”[ii] A “covered entity” includes health plans, health care clearinghouses, and health care providers who transmit health information.[iii] Protected health information is defined as “any information, whether oral or recorded in any form or medium, that . . . [r]elates to the past, present, or future physical or mental health or condition of an individual.”[iv]   

There are a limited number of exceptions to HIPAA regulations that permit disclosure under certain circumstances.  First, such information may be obtained with permission of the patient.  And second, such information may be obtained through traditional discovery affording participation to all parties.  HIPPA also provides a third, but very restricted, avenue for the discovery of protected medical information.  Specifically, HIPPA provides that such information may be obtained via ex parte contact with health care providers pursuant to court order issued for “good cause.”[v] This latter exception is the route defense customarily relies upon and is found in 45 C.F.R. § 164.512(e), Standard: Disclosures for judicial and administrative proceedings, which provides:

(1) Permitted disclosures.  A covered entity may disclose protected health information in the course of any judicial administrative proceeding:

(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order ...

45 C.F.R. § 164.512(e).

This provision trusts the important decision of whether to allow ex parte communications to the sound discretion of the trial judge.  Thus, the Court is free to deny the relief sought. 

The Federal Regulations do not offer any specific instruction or insight as to when an order of the Court should be granted.  However, through HIPAA’s stated purpose, Congress has made it clear that protecting a patient’s right to confidentiality of his or her individual medical information is a compelling federal interest.[vi] 

HIPAA’s protection of health information is so strong that in Law v. Zuckerman, the court advised that “[c]ounsel 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.”[vii] The court further cautioned that “[w]ise counsel must now treat medical witnesses similar to the high-ranking corporate employee of an adverse party.”[viii]  The fact that HIPAA so stringently restricts ex parte communications with treating physicians is evidence of a clear distaste for such practices.

Finally, it should be pointed out that 45 C.F.R. § 164.512(e) specifically addresses only “formal” methods through which protected health information may be obtained: court order, subpoena, discovery request or other lawful process – all of which clearly involve non-ex parte communications.  Nowhere in the regulation are ex parte communications addressed. 

In fact, a decision from the Missouri Supreme Court analyzed the HIPAA regulations and held that a trial court has no authority to issue an order advising a plaintiff's non-party treating physicians that they may or may not participate in informal discovery via ex parte communications.[ix] In Proctor, the plaintiffs filed a medical malpractice action, and defense counsel sought and obtained a trial court order authorizing informal ex parte communications between defense counsel and the plaintiff's treating physicians.  The Missouri Supreme Court reversed the order. The court initially noted that "HIPAA's general rule is that ex parte communications with a litigant patient's physician are prohibited."[x]

The court then focused on the language of 45 C.F.R. § 164.512(e)(1), which authorizes disclosure of protected health information "in the course of any judicial or administrative proceeding. The court stated: "The trial court, however, erred in its application of 45 C.F.R. § 164.512(e)(1) to this case because the plain and ordinary language of 45 C.F.R. § 164.512(e)(1) does not authorize the disclosure of protected health information during a meeting in which an attorney, without express authorization of the patient, has ex parte communications with a physician."[xi]

The court construed the phrase, "in the course of," "to include matters that occur while a case is pending in a judicial forum."[xii] The court noted that neither HIPAA, nor its implementing regulations, define the phrases "in the course of" or "judicial proceeding."[xiii]  The court concluded that a narrow definition is implicit in HIPAA's regulatory requirement that "a covered entity may make disclosures only pursuant to a court order or subpoena, discovery request, or other lawful process."[xiv] In other words, "such disclosure must be under the supervisory authority of the court either through discovery or through other formal court procedures."[xv]  Since an informal meeting between defense counsel and a treating physician is not a judicial proceeding, the court held that a trial court has no authority to issue an order advising the plaintiff's non-party treating physicians that they may or may not participate in informal discovery via ex parte communications:

   [T]he meeting at which ex parte communications occur is not a judicial proceeding because the trial court has no general oversight of the meeting or any control over it. Thus, 45 C.F.R. § 164.512(e), which permits disclosures in the course of judicial proceedings, does not apply to a meeting for ex parte communications, and consequently a trial court has no authority to issue a purported HIPAA order advising the plaintiff's non-party treating physicians that they may or may not participate in informal discovery via ex parte communications.[xvi]  

Finally, the court pointed out that neither the discovery rules, nor HIPAA's provisions, authorize a trial court to issue orders governing methods of informal ex parte communications with a plaintiff's non-party treating physicians.[xvii]

As set forth by the court in Proctor, during judicial proceedings discovery should be conducted with respect to treating physicians by formal means as provided in the Maryland Rules of Civil Procedure.  In sum, a court would violate HIPAA by simply giving carte blanche and unsupervised access to have conversations with a plaintiff’s treating physicians.[xviii]

 

Maryland Code Health General § 4-306(b)(3) Does Not Allow For Ex Parte Communications As Defendants Claim, And Even If It Did, HIPAA Preempts This Maryland Law.

Defendants also argue that under Maryland law once a patient chooses to place his or her medical care and treatment at issue in a civil action filed against a health care provider, all health care providers shall disclose all information in medical records and/or health related information to another health care provider’s legal counsel.  In support of this argument, defendants cite Section 4-306(b)(3) of the Health General Article of the Annotated Code of Maryland. 

Defendants claim that Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications.  In fact, the statute in question provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h), not a health care provider’s mental recollections and impressions.  In addition, the statute only provides for the disclosure of such written records that form the basis of the plaintiff’s claims, that is, written records that are relevant to the claims in the lawsuit.  The statute does not contemplate open-ended discussions with treating doctors that provide no assurance against the disclosure of irrelevant confidential medical information.  At best, the statute only contemplates the narrow disclosure of relevant written materials, not unsupervised ex parte communications. 

Assuming arguendo that Md. Code Health Gen. § 4-306(b)(3) permitted ex parte communications, “HIPAA preempts [that statute] and is controlling on the issue of ex parte communications.”[xix]  HIPAA contains a preemption provision whereby the statute and the regulations promulgated under HIPAA should supersede any contrary state law, unless the statute law is “more stringent” than HIPAA, i.e., gives the patient greater control over their medical records than HIPAA.[xx]  Defendants will argue that the provisions of § 4-306(b)(3) do not run contrary to HIPAA.  However, when a state statute such as § 4-306(b)(3) can force disclosure of medical information without a court order, or the patient’s consent, the state law cannot be deemed “more stringent” than the HIPAA regulations.[xxi]  Section 4-306(b)(3) is designed to give adverse counsel access to a patient’s medical records (though, not access to ex parte communications) without this very consent.[xxii]  Therefore, Maryland law “fails to satisfy the ‘more stringent’ standard, federal law is controlling and all ex parte communications must be conducted in accordance with the procedures set forth in HIPAA.”[xxiii] 

 

Lack of Good Cause

Inevitably, defendant’s cookie-cutter motion will cite Maryland Rule 2-403 – Protective Orders – arguing they need the court’s protection from “undue burden or expense,” and it is “fundamentally unfair” to comply with formal discovery because plaintiff has “unfettered access.” Putting aside reality – that treating physicians are not helping plaintiff attorneys - more often than not, defense counsel will file their motion without making any efforts to comply with the well-established standard for granting a motion pursuant to MD Rule 2-403. That is, the Rule states that on a “motion of a party or a person from whom discovery is sought, and for good cause shown.”[xxiv]  Maryland courts define “good cause” as:

   [s]ubstantial reason, one that affords a legal excuse.  Legally sufficient ground or reason . . . “good cause” depends upon [the] circumstances of [the] individual case . . . and its meaning must be determined not only by [the] verbal context of [the] statute in which [the] term is employed but also by [the] context of [the] action and [the] procedures involved in [the] type of case presented.[xxv]

            In Tanis v. Crocker, the Court of Special Appeals interpreted the “good cause” requirement of Maryland Rule 2-403 and held that “the party seeking a protective order has the burden of making a particular and specific demonstration of fact, as distinguished from general conclusory statements, revealing some injustice, prejudice, or consequential harm if protection is denied.”[xxvi] The Court of Special Appeals also recognized that “protective orders are not to be granted liberally.”[xxvii]

            In most cases, defendants utterly fail to show good cause, let alone a “particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice, or consequential harm if protection is denied,” as required by Tanis. 

 

Fortify Your Opposition

A shrewd defense attorney will “attempt” to show good cause by first requesting your client sign an authorization so they can attempt to demonstrate how “rigged” the system is in plaintiff’s favor when their request is denied. However, before you laughingly reject their request, examine what they are asking your client to sign. Is it a blank authorization or does it identify specific providers? Is it one provider or twenty? What is the timeframe? What is the potential the identified healthcare provider(s) can help or hurt your case? Send a letter or email asking why they need ex parte conversations that you can later use as an exhibit, and let the defense know you’ve had no such conversations (assuming that’s true!).

Use this opportunity to turn the tables and show the court there must be a nefarious intent. That is, when your client does not sign the authorization, despite your attempts facilitate good faith efforts, offer to help set an informal meeting or conversation with the healthcare provider. Defense is complaining about the cost of formal depositions – no problem – let’s set up a conference call or a Zoom. The no cost option. Make yourself available at night or on weekends for a call with the healthcare provider. This is at odds with their form motion that inevitably says “informal discussions can take place briefly, often by telephone or after hours, usually at the physician’s convenience.”  You offer, defense will likely reject it. Now you can demonstrate to the court defendant isn’t “forced to depose numerous treating healthcare providers,” it isn’t truly the cost of deposition, but rather, there is an ulterior motive.

Do not be shy about informing the court about what really happens when defense counsel has unfettered access to treating healthcare providers. In Manion v. NPW Medical Ctr., Inc., a Federal District Court confronted head-on the issue of ex parte communications between defense counsel and plaintiff’s treating physicians in a medical malpractice case, and noted the potential hazards:

“This court will not overlook the current concerns in the medical malpractice insurance industry and the attitudes of physicians and carriers alike.  An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician’s views.  The potential for impropriety grows even larger when defense counsel represents the treating physician’s own insurance carrier . . . .”[xxviii]

Finally, in the right context, don’t just rely on paid expert consultants. If a treating healthcare provider could help your case, identify them as experts. In a recent case, a subsequent treating healthcare provider was one of my named experts. Did defense counsel ask for ex parte communications with my retained expert? You bet they did, and they failed to inform the court, referring to the expert as “Plaintiff’s treating doctor.” Thankfully, the court denied Defendant’s motion.

 

Biographies

Andrew Burnett is a partner at Potter Burnett Law and a University of Baltimore, School of Law alumnus who focuses his litigation practice on medical negligence cases. He has been accepted as a certified lifetime member into the Multi-Million Dollar Advocates Forum, and the National Academy of Personal Injury Attorneys voted him among the Top 10 Personal Injury Attorneys Under 40 in Maryland. Most recently he was appointed to Governor Moore’s Anne Arundel County Trial Court Judicial Nominating Commission. He can be reached at andrew@potterburnettlaw.com.

Alicen Jobes is a University of Maryland, Francis King Carey School of Law alumnus, who joined Potter Burnett Law two years ago. Prior to attending law school, she was a Registered Nurse in the Baltimore area. Her area of practice includes medical negligence and personal injury litigation. She is currently a vice co-chair for MAJ’s Women’s Caucus. She can be reached at alicen@potterburnettlaw.com.