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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division ROSALYNN LAW, ) ) Plaintiff, ) ) v. ) ) DAVID J. ZUCKERMAN, M.D., ) ) Defendant. ) ) . ) _______________________________________)

Civil Action No. CBD-01-1429

MEMORANDUM OPINION DENYING PLAINTIFF'S ORAL MOTION TO PRECLUDE DEFENSE COUNSEL FROM CONDUCTING EX PARTE INTERVIEWS WITH PLAINTIFF'S TREATING PHYSICIAN The Court is faced with an apparent issue of first impression in the Fourth Circuit in this medical malpractice action. The question presented is whether adverse counsel's ex parte discussions with a treating physician regarding the scope of the physician's care violates the Health Insurance and Portability Accountability Act of 1996, 42 U.S.C. 1320d et seq. ("HIPAA"). The Court finds that in the absence of strict compliance with HIPAA such discussions are prohibited. Plaintiff Rosalynn Law ("Plaintiff"), brought this medical malpractice action against Defendant David J. Zuckerman, M.D., ("Defendant"). Jurisdiction is based on diversity of citizenship, and therefore Maryland substantive law must be applied where it does not conflict with controlling federal law. This Court heard arguments on January 7, 2004 and January 8, 2004 pursuant to Plaintiff's oral motion to prohibit defense counsel from conducting ex parte interviews with Plaintiff's treating

physician. ("Plaintiff's Motion"). After review of the relevant statutes and case law, the Court denied Plaintiff's Motion. The Court now supplements and further articulates its opinion. There are two questions before the Court raised by Plaintiff's Motion. The first was whether Defendant's ex parte pre-trial contacts with Plaintiff's treating physician, Dr. Thomas Pinckert, were a violation of HIPAA. Second, if those contacts were a violation of HIPAA, whether the remedy was to preclude Defendant from having other ex parte communications with Dr. Pinckert. This Court finds that a violation of HIPAA did occur but the remedy requested is not appropriate. A jury trial commenced in this case on January 6, 2004. Plaintiff alleged that the surgical treatment she received from Defendant rendered her cervix incompetent. Defendant performed a laser ablation procedure to remove dysplasia, or abnormal cells, from Plaintiff's cervix. Plaintiff's claim of malpractice is that during the procedure Defendant used laser power settings which caused collateral damage to her cervical tissue. Thereafter, Plaintiff became pregnant and increasingly concerned about her ability to carry a child. Plaintiff sought medical advice as to how best to carry the child to term. One treatment alternative available to Plaintiff was the placement of a cervical cerclage. Simply stated, the cerclage is a method of placing sutures on the cervical tissue so as to minimize the dilation of the cervical opening during the course of pregnancy. Among Plaintiff's alleged damages were the costs and injuries associated with the placement of a permanent cerclage by Dr. Pinckert. At the end of the second day of trial, Plaintiff raised an objection to ex parte communications that may have occurred between Dr. Thomas Pinckert and Defendant's counsel. Dr. Pinckert had long before been identified as one of Defendant's fact witnesses in the Pre-trial Statement prepared by the parties and approved by the Court. Dr. Pinckert was called to testify as Defendant's first fact witness 2

and to explain that Plaintiff's alleged damages due to the placement of the cerclage were the result of an elective surgical procedure and not a procedure compelled by the alleged negligent care of Defendant. Defendant's counsel met with Dr. Pinckert after Plaintiff provided her medical records to Defendant as part of discovery. Plaintiff was never notified in advance that Defendant's counsel would pursue ex parte communications with her treating physician. Plaintiff asserts that any attempt by the defense to have such communications is a violation of HIPAA. Plaintiff's sole request is for the issuance of an order precluding Dr. Pinckert from discussing Plaintiff's treatment and care with defense counsel or, in the alternative, to order Defendant to disclose all communications held with Dr. Pinckert and the details of Dr. Pinckert's expected testimony at trial. Transcript of Motions Hearing ("Trancript") January 7, 2004, at 4-5. Defendant's counsel stated that ex parte communications outside the four corners of Dr. Pinckert's medical records regarding Plaintiff had not taken place, and that it was not the intention of the defense to do so at any time. Transcript, January 7, 2004, at 4-5; Transcript, January 8, 2004, at 6-7. The Court initially disagreed with Plaintiff as to the application of HIPAA. The Court then issued an order permitting both sides to have ex parte communications with Dr. Pinckert regarding his care and treatment for purposes of the present case before he testified as a fact witness. Upon further reflection, the Court believes Plaintiff correctly discerned the applicability of HIPAA, but the remedy remains unchanged.

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Discussion A. The ex parte contacts between Defendant and Dr. Pinckert are governed by HIPAA not Maryland law. Maryland law does not prohibit ex parte communications "between a lawyer and the treating physician of an adverse party who has placed her medical condition at issue." Butler-Tulio v. Scroggins, 139 Md. App. 122, 150 (2001). Nor does HIPAA prohibit all ex parte communications with a treating physician for an adverse party. Mere contact between Plaintiff's physician and Defendant's counsel is not regulated by HIPAA. Such contact could include discussion of many benign topics, including but not limited to, the best methods for service of a subpoena, determining convenient dates to provide trial testimony, or the most convenient location for the anticipated deposition of the physician. However, HIPAA clearly regulates the methods by which a physician may release a patient's health information, including "oral" medical records. "The HIPAA regulations permit discovery of protected health information so long as a court order or agreement of the parties prohibits disclosure of the information outside the litigation and requires the return of the information once the proceedings are concluded." Helping Hand, LLC v. Baltimore County, 2003 WL 22966126 (D. Md. 2003). HIPAA and the standards promulgated by the Secretary of Health and Human Services ("Secretary") in the Code of Federal Regulations set forth the baseline for the release of health information. A patient's health information may be disclosed pursuant to 45 C.F.R.

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