Ex Parte Communications and the HIPAA Privacy Rule
Stacey A. Tovino
satovino@central.uh.edu
When preparing for a medical malpractice trial, defense counsel frequently will
meet with the plaintiff’s treating physicians in an informal setting in the absence of the
plaintiff or his or her attorney. One issue that has been raised is whether the federal
privacy rule that implements the Administrative Simplification provisions of the Health
Insurance Portability and Accountability Act of 1996 (the Privacy Rule) prohibits the
plaintiff’s treating physicians from participating in such communications without first
obtaining a written authorization from the plaintiff specifically stating that the physicians
may engage in the ex parte communication.1 A recent string of interesting cases address
the issue with varying results. Some cases interpret the Privacy Rule to prohibit treating
physicians from engaging in such communications unless the patient has signed a written
authorization specifically permitting his or her information to be disclosed for the
purpose of an ex parte communication. Other cases find that state laws permitting ex
parte interviews generally do not conflict with the Privacy Rule.
The underlying issue presents itself well in New York’s Keshecki v. St. Vincent’s
Medical Center.2 Keshecki was a medical malpractice action filed against the plaintiff’s
obstetrician for complications the plaintiff suffered during and after delivery, including a
separation of her pelvis, continuing pain, and shoulder dystocia of the infant. The
1
Of course, the Privacy Rule permits a defendant physician to use or disclose patient information to defend
him or herself without obtaining the prior written authorization of the patient who is the subject of the
information. See 45 C.F.R. § 164.506(c)(1) (permitting a covered entity to use or disclose protected health
information for its own treatment, payment, or health care operations without the prior written
authorization of the patient); id. § 164.501 (defining health care operations to include legal services).
2
Keshecki v. St. Vincent’s Med. Ctr., 785 N.Y.S.2d 300 (N.Y. Sup. Ct. 2004), available at
http://www.courts.state.ny.us/reporter/3dseries/2004/2004_24362.htm.
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plaintiff signed a written authorization on September 6, 2002, permitting Richmond
Orthopedic Associates, a medical group that employed one of her treating physicians, to
release medical records to the defendants. The authorization stated that, “[y]ou are not
authorized to write a report or to give interviews to the party presenting this
authorization.” The plaintiff signed a second written authorization on November 9, 2002,
that generally permitted a second treating physician to release medical records to the
defendants. The plaintiff signed a third written authorization on February 4, 2004,
allowing the defendants to obtain information from the first treating physician and to use
the information “for legal purposes.” Perhaps relying on these authorizations, as well as
additional subpoenas served by defense counsel, plaintiff’s two treating physicians
engaged in ex parte communications with defense counsel.
When the plaintiff’s attorney discovered that these conversations had taken place,
he contacted defense counsel and left a message directing him to refrain and desist from
conducting any further interviews of the plaintiff’s treating physicians unless specifically
authorized by the plaintiff in a written authorization. Defense counsel responded by
telling the plaintiff’s attorney that he intended to continue contacting the plaintiff’s
physicians. The plaintiff then moved for a protective order under New York law to
suppress the treating physicians’ responses.
In its September 24, 2004, opinion, the New York Supreme Court explained that
although the physician-patient confidentiality privilege has been codified in New York
state law for over 175 years,3 plaintiffs generally waive certain privacy rights when they
3
Id. (citing 1829 N.Y. Rev. Stat., Part III, Ch VII, Tit. III, Art. 7, § 73 (“No person duly authorized to
practice physic or surgery, shall be allowed to disclose any information which he may have acquired in
attending any patient, in a professional character, and which information was necessary to enable him to
prescribe for such patient as a physician, or do any act for him as a surgeon.”)).
2
claim an injury because defendants are entitled to discover the nature of their injuries.
However, the Court also recognized the existence of the Privacy Rule, and held that the
Privacy Rule preempted New York law regarding ex parte communications because the
New York law was less stringent than the Privacy Rule. The Court concluded that to
comply with the Privacy Rule, a defense counsel who wishes to interview a plaintiff’s
treating physician or other health care provider must, among other requirements, obtain
an authorization that: (1) states in bold letters that the information requested to be
disclosed is not at the request of the patient; (2) states in bold letters that, “The purpose of
the information is to assist the defendant in defense of a lawsuit brought by the plaintiff”;
and (3) contains the name and business address of the person to whom the health care
provider or hospital employee may give an interview and identifies the persons or entities
the interviewer is representing. The Court further held that a separate authorization must
be signed by the plaintiff for each interview and that such authorizations shall not be
combined with a subpoena, “which only acts to intimidate the doctor.” Finally, the Court
held that, within five days after the interview, whether in person or on the telephone or by
any other manner which technology allows, the defendant must provide the plaintiff with:
(1) any and all written statements, materials or notations and any document obtained from
the interviewed health care provider; and (2) copies of any memorandums, notes, audio
or video recording, which records any oral or written statements made of the health care
provider. If, after satisfying all of the steps listed above, the defense counsel chooses to
call the plaintiff’s treating physician as either a fact witness or as an expert witness, the
Court held that the defense counsel would not be precluded from conducting subsequent
private discussions with the physician in preparation for trial. The Court further stated:
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It is clear to this court that HIPAA and its regulations have changed the
rules regarding ex-parte communications with a plaintiff’s treating health
care providers. HIPAA protects the privacy of the plaintiff, and this court
must protect that right. The only adequate remedy to protect that right is
to preclude any evidence obtained contrary to those safeguards. In this
case, the defendant did not have an authorization that allowed for private
interviews. While it is clear that the authorization would not have had the
language suggested in this yet to be published decision, it is clear the
defendants, at minimum should have obtained an authorization which
allowed for private interviews. By subpoenaing the doctors, the
defendant’s counsel created a false impression to the doctors that they
were under an obligation to speak with them. The doctors clearly did not
do anything intentionally wrong as they believed they were complying
with a subpoena. Here, the actions of the defense counsel misled the
doctors.
The Court ultimately prohibited the defense from using the plaintiff’s treating physicians
as expert witnesses to give opinion testimony at trial and from using any information
obtained from the plaintiff’s treating physicians that was obtained without a proper
authorization signed by the plaintiff.
Although Keshecki and other cases4 have taken a very firm stance with respect to
the ability of defense counsel to engage in ex parte communications with the plaintiff’s
treating physicians, the holding in Keshecki has not been uniformly adopted by courts in
other states that have addressed the issue. For example, a New Jersey Superior Court
held in Smith v. American Home Prods. Corp. Wyeth-Ayerst Pharmaceutical that ex parte
interviews authorized by New Jersey law generally do not conflict with the Privacy Rule
(although the court did find that the Privacy Rule’s specific requirements relating to
4
See, e.g., Crenshaw v. Mony Life Ins. Co., 318 F.Supp.2d 1015, 1030 (S.D. Cal. 2004) (holding that the
defendant “violated HIPAA” for engaging in ex parte communications); Law v. Zuckerman, 307 F. Supp.2d
705, 707 (D. Md. 2004) (prohibiting ex parte communications “in the absence of strict compliance with
HIPAA”); Browne v. Horbar, 2004 WL 2827657 (N.Y. Sup., November 17, 2004) (unpublished decision)
(refusing to address whether “HIPAA in an absolute sense prohibits ex parte interviews of treating
physicians,” but denying a motion to order plaintiff’s treating physicians to communicate with defense
counsel on the grounds that “judicial participation in the informal interview process by granting a qualified
protective order under circumstances such as these would improperly permit medical malpractice
defendants to obtain discovery after the note of issue has been filed without requiring adherence to the rules
governing disclosure”).
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authorizations do preempt New Jersey’s analogous provisions).5 The Smith court
ultimately concluded that the Privacy Rule does allow “informal discovery” but that
judges have discretion in determining whether to authorize private interviews with
treating physicians.6
Whether a treating physician can engage in ex parte communications with defense
counsel in a medical malpractice case depends on how each state’s courts interpret the
interplay between any state law that addresses ex parte communications and state and
federal privacy law. Although courts in New York, New Jersey, Maryland, California
and a few other states have addressed the interplay, results from other states remain to be
seen.
5
Smith v. American Home Products Corp. Wyeth-Ayerst, 855 A.2d 608 (2003). See also Northwest
Memorial Hospital v. Ashcroft, 362 F.3d 923, 925-26 (7th Cir. 2004) (holding that the Privacy Rule is
strictly a procedural rule governing how and when a litigant can obtain authority to use medical records in
litigation).
6
Smith, 855 A.2d at 626-27 (denying ex parte interviews because there was no need for informal discovery
“so late into the litigation”).
5