Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
SUPREME COURT ANDREA L. HOLMAN, Personal Representative of the Estate of LINDA CLIPPERT, Deceased, Plaintiff-Appellant, v MARK RASAK D.O., Defendant-Appellee.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED JULY 13, 2010 STATE OF MICHIGAN

No. 137993

BEFORE THE ENTIRE BENCH CORRIGAN, J. We granted leave to consider whether the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., permits ex parte interviews by defense counsel with treating physicians under a qualified protective order. We hold that ex parte interviews, which are permitted under Michigan law, are also consistent with HIPAA regulations, provided that "reasonable efforts have been made . . . to secure a qualified protective order that meets the requirements of [45 CFR 164.512(e)(1)(v)]." 45 CFR 164.512(e)(1)(ii)(B). Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTS AND PROCEEDINGS The Court of Appeals summarized the relevant facts and trial court proceedings: Plaintiff filed this wrongful-death medical-malpractice action alleging that defendant had failed to properly diagnose or treat plaintiff's decedent, Linda Clippert, thereby proximately causing her death. Defendant sought to interview Clippert's treating physician, but plaintiff refused to waive Clippert's confidentiality rights under the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq. Plaintiff signed a waiver allowing the release of medical records, but refused to provide a release for oral communications. Defendant moved for a qualified protective order to permit an ex parte interview with Clippert's treating physician, but the circuit court denied the motion. The court concluded that "the HIPAA provision relative to a protective order only . . . pertains to documentary evidence" and "that HIPAA does not authorize ex parte oral interviews." [Holman v Rasak, 281 Mich App 507, 508; 761 NW2d 391 (2008).] The Court of Appeals granted defendant's application for leave to appeal and concluded that defense counsel may conduct an ex parte interview with a plaintiff's treating physician "if a qualified protective order, consistent with 45 CFR 164.512(e)(1), is first put in place." Id. at 513. The Court "agree[d] with plaintiff that HIPAA

supersedes Michigan law to the extent that its protections and requirements are more stringent than those provided by state law," but disagreed with the trial court's conclusion "that a defendant's ex parte interview with a treating physician may not be the subject of a qualified protective order under HIPAA." Id. at 511-512. It reasoned that the relevant HIPAA regulation, 45 CFR 164.512(e)(1)(ii), does not exclude oral communication from the regulations governing disclosure of protected health information. Id. at 512.

Moreover, "45 CFR 160.103 specifically provides that HIPAA applies to both oral and written information, and 45 CFR 164.512(e)(2) makes clear that the regulations

2

concerning qualified protective orders `do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.'" Id., quoting 45 CFR 164.512(e)(2). The panel also rejected plaintiff's argument that

defendants may rely on written medical records and conduct depositions if more information is required. It quoted this Court's observation in Domako v Rowe, 438 Mich 347, 361; 475 NW2d 30 (1991), that informal interviews are "`routine practice'" and that "`[t]here is no justification for requiring costly depositions . . . without knowing in advance that the testimony will be useful.'" Holman, 281 Mich App at 512-513. The panel reversed the trial court's order and remanded for further proceedings. We granted plaintiff's application for leave to appeal to consider whether HIPAA permits defense counsel to seek ex parte interviews with a plaintiff's treating physicians. II. HIPAA Congress enacted the Health Insurance Portability and Accountability Act in 1996. HIPAA provided that if Congress did not enact "legislation governing standards with respect to the privacy of individually identifiable health information within 36 months after HIPPA was enacted," the Secretary of Health and Human Services would be required to "promulgate final regulations containing such standards . . . ." PL 104-191,

Download ANDREA L HOLMAN V MARK RASAK DO.pdf

Michigan Law