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U.S. Court In Maryland Says HIPAA Applies To Ex Parte Communications With Treating Physician


HLD, v. 32, n. 5 (May 2004)

U.S. Court In Maryland Says HIPAA Applies To Ex Parte Communications With Treating Physician

The Health Insurance Portability and Accountability Act (HIPAA) governs ex parte communications with the treating physician of a patient in a medical malpractice action brought in Maryland, the U.S. District Court for the District of Maryland held.

In the diversity action, the court concluded that HIPAA pre-empted a Maryland law that requires healthcare providers to disclose a patient's medical records without authorization when a patient puts her medical condition at issue. The court found the Maryland law was less restrictive than HIPAA's requirements and therefore HIPAA controlled. Although the patient had asked that the defense be prohibited from further discussing her care with her treating physician, the court declined to do so. "This Court finds that a violation of HIPAA did occur but the remedy request is not appropriate," the opinion said.

Rosalynn Law sued David J. Zuckerman, M.D. for medical malpractice, claiming he damaged her cervix during laser surgery to remove abnormal cells. After Law became pregnant, she had a cervical cerclage placement by Dr. Thomas Pinckert. The cerclage is a method of suturing the cervical tissue to minimize the dilation of the cervical opening during pregnancy.

At trial, Law objected to ex parte communications during discovery that may have occurred between Pinckert and defense counsel. According to Law, the ex parte communications with her treating physician violated HIPAA. Law sought to bar Pinckert from discussing her treatment with Zuckerman's counsel or to require the defense to disclose all communications with Pinckert and provide the details of his expected testimony.

The U.S. District Court for the District of Maryland initially denied Law's motion and issued an order allowing both sides to have ex parte communications with Pinckert before his testimony. "Upon further reflection, the Court believes Plaintiff correctly discerned the applicability of HIPAA, but the remedy remains unchanged," the opinion said.

The court held that HIPAA pre-empted the Maryland Confidentiality of Medical Records Act (MCMRA) and therefore controlled the ex parte contact at issue. The court concluded that the MCMRA is not "more stringent" than HIPAA with respect to the privacy of individually identifiable health information. The court noted the distinction between the MCMRA, which provides that a healthcare provider shall disclose patient medical records without authorization in medical malpractice actions brought by the patient, and HIPAA, which provides that a healthcare provider may disclose patient records in accordance with certain procedures.

HIPAA pre-empts contrary state laws unless they are "more stringent" than HIPAA requirements. According to the court, "more stringent" means those laws that "afford patients more control over their medical records." In so holding, the court rejected the defense's argument that MCMRA was more restrictive because its rule governing disclosure is mandatory whereas HIPAA's rule is permissive.

The key to examining this issue is the patient's ability "to withhold permission and to effectively block disclosure," the court noted. "HIPAA's permissive disclosure requirements give each patient more control over the dissemination of their medical records than MCMRA, while MCMRA sacrifices the patient's control of their private health information in order to expedite malpractice litigation. If state law can force disclosure without a court order, or the patient's consent, it is not 'more stringent' than the HIPAA regulations," the court wrote.

"The recently enacted HIPAA statute has radically changed the landscape of how litigators can conduct informal discovery in cases involving medical treatment," the court noted. "Counsel should now be far more cautious in their contacts with medical fact witnesses when compared to other fact witnesses to ensure that they do not run afoul of HIPAA's regulatory scheme," the court advised.

Despite finding that HIPAA applied to any pre-trial disclosure of Law's medical information, the court held that precluding defense counsel from further contact with Pinckert about Law's treatment would be an inappropriate remedy given the court's earlier ruling. Based on these considerations, the court concluded that its previous order effectively remedied any potential violation.

Law v. Zuckerman, No. CBD-01-1429, 2004 WL 438327 (D. Md. Feb. 27, 2004).

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