One hot button issue in Maryland medical malpractice cases today is the circumstances under which defense lawyers can speak to Plaintiff’s treating doctor. For years, this was not an issue. If a defense lawyer wanted to talk to a treating doctor, she would just pick up the phone and call. This was a powerful tool for malpractice defense lawyers because (1) you always want to know what a treating doctor — or any witness for that matter — is going to say before the doctor testifies, and (2) it gives the defense lawyer a chance to participate in shaping the doctor’s testimony.
HIPAA changed all of this in 1996. HIPAA requires that a doctor “may disclose protected health information in the course of any judicial or administrative proceeding [i]n 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)(1)(i).
So that settles it, right? In most states, yes. If this is current, 38 states prohibit ex parte conduct and another six permit informal interviews with significant restrictions.
Why This Fight Continues in Maryland
Yet in Maryland, the battle still rages. Defense lawyers 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. Specifically, Md. Code Health Gen. § 4-306(b)(3) provides a statutory right to ex parte communications. Actually, I think the statute provides only for the disclosure of written medical records, as they are defined in Md. Code Health Gen. § 4-301(h).
But there is a far bigger problem. 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. This is what you would expect, right? Federal law trumps state law. A U.S. federal court has said exactly this in Law v. Zuckerman, an opinion that has been cited all around the country and by many Maryland judges (we have a collection of these) in finding that HIPAA rules preempt the Maryland statute allowing these ex parte communications (again, assuming the statute even does that). But many judges still buy into that idea that Law v. Zuckerman does not say what it says.
Keep in Mind What We Are Really Arguing About
Certainly, the defense lawyers have a right to know what the treating physicians are going to say before trial. We are just talking about the method by which the Defendants will obtain information from Plaintiff’s health care providers, not what information they will get or from whom. Through traditional discovery devices, the Defendants have access to the entirety of Plaintiff’s medical records, including multiple items of medical history and treatment relevant to the issues in this case. There is not a single page of Plaintiff’s medical records, and thus his medical history, that the Defendants cannot procure through traditional discovery devices including notices of deposition duces tecum and/or deposition.
But, let’s face it plaintiffs’ lawyers, we are asking for unequal access. We get to talk to them ex parte. Why can’t they? First, there are lots of situations in litigation where the playing field is not level. The very premise of a malpractice case requires a doctor to say another doctor is negligent. That itself is the most uneven of playing fields. But the door swings both ways. My point is let’s dispense with the “fair is fair” nonsense.
It is, clearly, fair for a patient to be able to give someone permission to speak with her doctors. But to have a doctor basically talking about a patient behind their back… isn’t that one of the invasions of privacy HIPAA was designed to prevent? I mean, the doctor can say whatever the doctor wants to say in a litigation context. But doesn’t the spirit of HIPAA require the doctor to say it to the patients face as opposed to behind a closed door with a defense doctor.
- Defense Research Institute (DRI) article interpreting Law v. Zimmerman that concedes that “HIPAA arguably precludes ex parte contact with treating physicians.” This does not stop the author from giving a road map for defense lawyers in states that have not expressly prohibited ex parte communication with treating doctors.”
- Defense lawyers’ efforts to get clients to sign away their HIPAA rights.