The interaction of HIPAA and Michigan law governing ex parte interviews by defense counsel with a claimant's doctor

On July 13, the Michigan Supreme Court rejected a claim that federal HIPAA requirements completely precluded defense or insurance representatives from conducting ex parte (private) meetings with a victim-litigant's doctors.  The Court noted that a doctor is always free to refuse to cooperate with one party's attorney to the exclusion of the other, and that in this "informal," unregulated situation many doctors will do precisely that.  Nevertheless, it determined that the HIPAA law's requirements are consistent with existing Michigan law, and allow for ex parte interviews:

    1) so long as the health care provider "receives adequate assurance" that the party requesting the interview has either allowed the patient the "opportunity to agree or object" to the particular interview; or,

    2) in the alternative, so long as the party requesting the interview has made reasonable effort to secure a qualified protective order appropriately limiting further disclosure and requiring proper disposal of the information.

Victim's attorneys have long bridled at the existence of ex parte interviews because some unscrupulous interviewers use the opportunity to attempt to impart bias into the physician-patient relationship by offering a patient's doctors false or misleading information about the victim or his claim.  The dissenting Justices concluded that the risks associated with the procedure render it inconsistent with HIPAA privacy regulations and would require due process in the discovery of a victim-litigant's physician's opinions.

The decision was 5-2 in the matter entitled Holman v. Rasak.