Defense Lawyers Ex Parte Conversations with Doctors

In an awful decision this week in a wrongful death medical malpractice case, the Michigan Court of Appeals overturned a lower court’s ruling which would have prevented ex parte communications between defense counsel and a Plaintiff’s treating physician from being entered into evidence, because HIPAA privacy rules already prohibit medical malpractice defense lawyers from meeting ex parte with plaintiff’s physicians even if the Plaintiff has executed a HIPAA authorization.

This Michigan Court of Appeals opinion relies on the fact that the Plaintiff executed a HIPAA authorization for the defense counsel. In Maryland, there is no mechanism to require a Plaintiff to waive HIPAA rights because a lawsuit has been filed. Based on a quick review of Belote v. Strange, another Michigan Court of Appeals case, I think Michigan does interpret HIPAA to protect oral interviews with doctors, if there is no executed HIPAA authorization. So I extrapolate from this that plaintiffs are required to sign a HIPAA form to pursue a medical malpractice case in Michigan.

Our lawyers never allow our clients to sign HIPAA authorizations for defense counsel use in personal injury or medical malpractice cases. Many of us, as attorneys, want to be considered cooperative lawyers and feel bad denying these requests. But the lesson learned here is that if you compromise your client’s rights under HIPAA you are leaving your client open to unforeseeable consequences.

Personally, I’m not a big privacy guy. I don’t have a big problem with the Patriot Act, for example. I also realize that accident and malpractice victims cannot use their medical history as a sword and a shield. You cannot pick and choose the medical records you want to put at issue in a case. But there is something awful – and creepy, actually – to me about allowing a defense lawyer in an adversarial system to sit down ex parte and talk to a patient’s doctor about the care, treatment and private conversations a doctor had with that patient. (Adding to the creepy factor: this is a wrongful death case.)

This raises the question as to what kind of doctor would be willing to talk to the lawyers ex parte. But that is a whole different issue.

You can find the entire opinion here.

Updated:
  • Interesting opinion – a HIPAA form for defense counsel – it just should never happen.

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