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!

Ohio Court Creates New Tort For Unauthorized Dislcosure of Medical Information

The Ohio Supreme Court issued a recent decision in Hageman v. Southwest General Health Center, et al. Slip Opinion No. 2008-Ohio-3343 (July 9, 2008), holding that an attorney's unauthorized disclosure of medical information obtained during litigation in a separate proceeding could be the basis of a tort claim. The decision in Hageman has implications regarding the waiver of confidentiality and the secondary release of medical information under a standard HIPAA compliant authorization.

The Court in Hageman held:

With these considerations in mind, we hold that when the cloak of confidentiality that applies to medical records is waived for the purposes of litigation, the waiver is limited to that case. An attorney can certainly use medical records obtained lawfully through the discovery process for the purposes of the case at hand—e.g., submitting them to expert witnesses for analysis or introducing them at trial. However, an attorney may be liable to an opposing party for the unauthorized disclosure of that party’s medical information that was obtained through litigation. Thus, as in our decision in Biddle, we conclude that an independent tort exists to provide an injured individual with a remedy for such an action.

In ruling the Court in Hageman ooked to the Court's prior decision in Biddle v. Warren General Hospital, 86 Ohio St.3d 395, 715 N.E. 518 (1999), where the Court found a separate tort for breach of privacy and confidentiality related to medical records.

The Court in Biddle made the following findings:

1. In Ohio, an independent tort exists for the unauthorized, unprivileged disclosure to a third party of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship.

2. In the absence of prior authorization, a physician or hospital is privileged to disclose otherwise confidential medical information in those special situations where disclosure is made in accordance with a statutory mandate or common-law duty, or where disclosure is necessary to protect or further a countervailing interest that outweighs the patient’s interest in confidentiality.

3. A third party can be held liable for inducing the unauthorized, unprivileged disclosure of nonpublic medical information that a physician or hospital has learned within a physician-patient relationship. To establish liability the plaintiff must prove that (1) the defendant knew or reasonably should have known of the existence of the physician-patient relationship, (2) the defendant intended to induce the physician to disclose information about the patient or the defendant reasonably should have anticipated that his actions would induce the physician to disclose such information, and (3) the defendant did not reasonably believe that the physician could disclose that information to the defendant without violating the duty of confidentiality
that the physician owed the patient.