In product liability and other actions in which personal injuries are alleged, ex parte interviews of the plaintiff's treating physicians can be invaluable to defense counsel. While the procedures and requirements vary from state to state, ex parte interviews of treating physicians are permitted in approximately twenty states, based largely on the notion that any privilege or confidentiality attendant to the plaintiff's relationship with the physician is waived by the plaintiff putting his physical, mental and/or emotional condition "at issue" in the litigation.1 The passage of the Health Insurance Portability and Accountability Act of 19962 ("HIPAA") effective April 14, 2003 imposed additional requirements on the informal interview process, significantly burdening the procedure and limiting its utility.
The Benefits Of TreatingPhysician Interviews
An informal interview with a plaintiff's treating physician permits a defense lawyer to assess the physician's knowledge of the plaintiff's medical condition and treatment, and thereby make an informed decision as to whether it is advantageous or necessary to memorialize the doctor's testimony by deposition. Without informal access to the physician, defense counsel is often left with a difficult choice: (1) subpoena the physician for a deposition that may yield a record that is both harmful to the defendant, and available as affirmative proof to plaintiff at trial if the physician is beyond the reach of a trial subpoena or otherwise "unavailable;" or (2) opt not to depose the physician and risk having to cross- examine the physician without the benefit of a discovery deposition if the doctor appears as a witness for plaintiff at trial.
HIPAA And Patient Privacy
The passage of HIPAA was intended to address a variety of issues ranging from health care fraud to health care insurance coverage for terminated employees. Significantly, HIPAA also established standards to protect the confidentiality of an individual's personal health information ("PHI"). Through the promulgation of a series of regulations collectively referred to as the "Privacy Rule," various requirements and procedures were imposed upon covered entities (health care providers, health plans and health care clearing houses) relating to the disclosure or release of PHI in order to preserve the confidentiality of an individual's health care information. The HIPPA Privacy Rule further complicated the already unsettled landscape of ex parte interviews of treating physicians. Beyond injecting forms and protocol into the informal interview procedure, HIPAA poses risks to both defense counsel and the physicians. Because the violation of HIPAA rules can result in civil monetary penalties and even criminal fines and imprisonment for intentional disclosures in violation of the regulations for personal gain or malicious purpose, HIPAA has naturally had a chilling effect upon the vigor with which some counsel will pursue such interviews and the willingness of treating physicians to voluntarily submit to interviews by defense counsel.
HIPAA And Litigation -Related Disclosures
Under the Privacy Rule, PHI may be released by a health care provider or other covered entity in the context of judicial or administrative proceedings pursuant to a court order, an authorization compliant with specific requirements or subpoenas supported by additional required documentation. In summary, the Rule requires a "plain language" authorization that: (1) specifically describes the information to be used or disclosed; (2) specifically identifies the individuals authorized to request the disclosure or use; (3) specifically reveals identities of the individuals to whom the requested use or disclosure can be made; (4) comprehensively describes the purpose(s) of the use or disclosure; (5) contains an expiration date for the authorization; (6) includes a dated signature; and (7) memorializes the right of the individual to revoke the authorization in writing; and that "treatment, payment, enrollment and eligibility for benefits may be conditioned upon the authorization." See 45 CFR §164.508(c)(1).3
Judicial Interpretation Of HIPAA
Since HIPAA and the Privacy Rule became effective, its impact upon the practice of ex parte interviews of treating physicians has been addressed by courts in several jurisdictions. By its own terms, HIPAA expressly pre-empts state law unless it is determined that the state law is "more stringent" in protecting the privacy of PHI. While at least one court has determined that HIPAA pre-empted state law permitting ex parte interview of physicians,3 courts of several other states, notably New York and New Jersey, have held that HIPAA does not pre-empt the applicable state practice for such interviews. In both cases, however, the courts determined that the existing protocols for ex parte interviews should be modified as to better protect the patient/plaintiff's privacy rights.
In Smith v. American Home Products, Inc.,4 the New Jersey Superior Court, Law Division, held that the informal procedures of ex parte interviews were neither addressed nor pre-empted under the HIPAA's privacy regulations and did not supersede existing state law permitting physician interviews. While holding that interviews would not be appropriate given the procedural posture of the case, the court declared that in light of the strictures of the Privacy Rule, the execution of a HIPAA compliant authorization should be a predicate to such interviews.5
In the New York decision, Keschecki v. St. Vincent's Medical Center, the court held that defense counsel seeking a post note of issue interview of a plaintiff's treating physician should comply with the following requirements for each interview:6
Pre Interview: Obtain from plaintiff an authorization separate from any other authorization that:
Post Interview: Within five (5) days of each interview, defense counsel must provide plaintiff with copies of the following documents:
It is clear the execution of an authorization form that complies with HIPAA and perhaps other conditions will be an essential predicate to conducting ex parte interviews of physicians in the future. As a practical matter the viability of this option will turn on the willingness of the plaintiff/patient to sign the authorization, as well as the degree to which the treating physician chooses to participate. Even in those jurisdictions in which case law would effectively compel the patient to sign an authorization, the participation of the physician will remain voluntary. Whether due to understandable caution at the consequence of making wrongful disclosures or upon consultation with their patient, or perhaps the patient's attorney, physicians may be reluctant to provide an interview even if an authorization is given. Thus, in those jurisdictions in which the plaintiff's execution of an appropriate authorization form is not discretionary, it is likely that defense counsel will not be able to proceed with informal interviews of treating physicians, and will be obliged to pursue more formal avenues of discovery.
1 See, Smith, "Recognizing the Split: The Jurisdictional Treatment of Defense Counsel's Ex Parte Contact with Plaintiff's Treating Physician" 23 J Legal Prof 247, 255 (1999).
2 42 USC 1320(d) et seq.
3 See Law v. Zuckerman, 307 F.Supp. 2d 705 (D.Md. 2004)(applying Maryland law.)
4 Smith v. American Home Prod. Corp., 372 N.J. Super. 105, 855 A.2d 608 (Law Div. 2003).
5 Existing New Jersey law required defense counsel seeking an ex parte interview of a treating physician to: (1) provide notice of the time and place of the proposed interview; (2) provide the physician with a description of the anticipated scope of the interview and (3) inform the physician with "unmistakable" clarity that participation in the interview is voluntary. Stempler v. Speidell , 100 N.J. 368, (1985). The issue of whether a uniform HIPAA compliant authorization form should be created has been referred to the New Jersey Superior Court's Civil Practice Committee.
6 If after complying with the interview guidelines, a defendant wishes to use a treating physician as a fact or expert witness at trial pursuant to CPLR 3101(d) notice, defense counsel may have additional private communications with the physician to prepare their trial testimony, which communications need not be disclosed.
Kevin R. Gardner is a Partner in Connell Foley LLP's Litigation Practice Group and an adjunct Professor of Law at Seton Hall University School of Law. He may be reached at (973) 535-0500.