HIPAA: Michigan Supreme Court Examing Preemption, Confidentiality and Ex Parte Interview of Treating Physicians in Medical Liability Litigation

The AMANews reports that the Michigan Supreme Court is examining whether the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempts state law to allow a defendant physician in a medical liability case to interview the plaintiff/patient’s other treating physicians.

The history and docket information on the case before the Michigan Supreme Court, Andrea L. Holman v. Mark Rasak, SCt Case Number 137993, can be found via search here. Oral arguments were held on November 3, 2009. The Michigan Supreme Court provides a background summary of the case along with links to the briefs filed by the parties, including Amicus Curiae Briefs filed by the Michigan Association for Justice, Michigan Defense Trial Counsel, Michigan Health and Hospital Association, Michigan State Medical Society and ProAssurance Casualty Company and American Physicians Assurance Corporation.

The case involves a defendant physician who sought to interview the treating physicians, but the plaintiff/patient refused to waive her confidentiality rights under HIPAA. Plaintiff signed a HIPAA Authorization releasing the medical records but refused to provide a release for “oral communications.” Defendant physician then sought a protective order to permit the ex parte interviews of the treating physicians but the circuit court denied the motion.

The circuit court concluded that the HIPAA provisions relative to the protective order only pertain to documentary evidence and that HIPAA does not authorize ex parte oral interviews.

On appeal the State of Michigan Court of Appeals in Andrea L. Holman v. Mark Rasak, D.O. ruling on November 18, 2008, reversed the circuit court’s order denying the defendant physician’s motion for a protective order to allow him to conduct ex parte interviews with the plaintiff/patient’s treating physicians. The court held that HIPAA supersedes Michigan law to the extent that its protections and requirements are more stringent than those provided by stat law. The court held that the defendants may conduct an ex parte oral interview if a qualified protective order, consistent with 45 CFR 164.512(e)(1), is first put in place.

This will be an interesting ruling to watch. Stay tuned!