WELCOME TO THE WORLD OF HIPAA! The Health Insurance and Portability Accountability Act of 1996, 42 U.S.C. 1320d et seq. (HIPAA) may very well prohibit such discussions unless there is strict compliance with HIPAA regulations. This was the question with which a federal court in Maryland was confronted in a 'case of first impression.' With the advent of the new emphasis on HIPAA and the rules and regulations promulgated under it, courts will be bombarded with HIPAA cases.
ROSALYNN LAW BROUGHT SUIT FOR MEDICAL MALPRACTICE AGAINST DR. DAVID ZUCKERMAN. The suit was brought in the United States District Court for the Southern District of Maryland. Maryland's substantive law had to be applied by the federal court unless there was a conflict with controlling federal law. The plaintiff filed an oral motion to prohibit defense counsel from conducting ex parte interviews with her treating physician. There were two questions raised by the plaintiff's motion. The first was whether the defendant's ex parte pretrial contacts with plaintiff's treating physician, Dr. Thomas Pinckert, were a violation of HIPAA. The second was if those contacts were a violation of HIPAA, whether the remedy was to preclude the defendant from having other ex parte contacts with Dr. Pinckert. The plaintiff brought suit against the defendant alleging that the surgical treatment she received from the defendant rendered her cervix 'incompetent.' Dr. Zuckerman performed a laser ablation procedure to remove dysplasia, or abnormal cells, from the patient's cervix. The plaintiff's claim of malpractice focused on the fact that during the procedure, Dr. Zuckerman used power settings, which caused collateral damage to her cervical tissue. The plaintiff became pregnant, which increased her concern about her ability to carry a child. The plaintiff sought medical advice as to how best to carry the child to term. One alternative was the placement of a cervical cerclage to minimize the dilation of the cervical opening during the course of pregnancy. During the second day of trial, the plaintiff raised an objection to ex parte contact that occurred between Dr. Pinckert and Dr. Zuckerman's attorneys. The plaintiff moved for the issuance of an order precluding Dr. Pinckert from discussing her treatment and care with Dr. Zuckerman's attorney or, in the alternative to order Dr. Zuckerman to disclose all contacts with Dr. Pinckert and the details of Dr. Pinckert's expected testimony. Initially, the court found that HIPAA did not apply. The court reversed itself and held that HIPAA applied. However, the remedy fashioned by the court remained unchanged.
THE COURT HELD THAT EX PARTE CONTACTS BETWEEN DR. ZUCKERMAN AND DR. PINCKERT WERE GOVERNED BY HIPAA. The court noted that Maryland law does not prohibit ex parte communications 'between a lawyer and a treating physician of an adverse party, who has placed her medical condition at issue.' However, the court also noted that HIPAA does not prohibit all ex parte contact with a plaintiff's treating physician by an adverse party. Mere contact between the plaintiff's physician and the defendant's attorney is not regulated by HIPAA. Such contact could include discussion of may benign topics.
HIPAA REGULATIONS PERMIT DISCOVERY OF PROTECTED HEALTH INFORMATION SO LONG AS NO COURT ORDER OR AGREEMENT OF THE PARTIES PROHIBITS DISCLOSURE OF THE INFORMATION OUTSIDE LITIGATION. HIPAA and the standards promulgated by the Secretary of Health and Human Services (Secretary) in the Code of Federal Regulations (CFR) set forth the base line for the release of health information. The recently enacted amendments to HIPAA have radically changed the landscape as to how litigators can conduct informal discovery in cases involving medical treatment. In times past, given Maryland's reluctance to embrace the physician-patient privilege, ex parte contacts with an adversary's treating physician may have been a valuable tool in the arsenal of savvy counsel. The element of surprise could lead to case altering, if not case dispositive results. The court concluded that to the extent that there was a disclosure of individually identifiable health information, Dr. Zuckerman's attorney's pretrial contacts with Dr. Pinckert were in violation of HIPAA.. Both plaintiff's and defendant's attorneys in medical malpractice case should be keenly aware of the provisions of HIPAA, and the new era in affording federal protection over a confidentiality of an individual's medical records. Law v. Zuckerman, 2004 WL 438327 F.3d
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
