Foster Swift Health Care Law Report
On November 18, 2008, the Michigan Court of Appeals in a 3-0 published opinion ruled that if a qualified protective order consistent with the HIPAA regulations was obtained, ex parte discussions with healthcare providers would be acceptable. The Court of Appeals thereby reversed a trial court ruling that limited application of a HIPAA protective order to documentary evidence and disallowed ex parte oral interviews. Holman v Rasak, ___ Mich App ___, ___ NW2d ___, 2008 WL __ (Docket #279879).
This ruling is the first published appellate opinion dealing with the interplay of the HIPAA privacy regulations and discovery, and specifically of the propriety of ex parte interviews and conferences with healthcare providers in light of the HIPAA privacy regulations. The two basic provisos to getting a HIPAA compliant qualified protective order are that the information be used only for the litigation at hand and that the information either be destroyed or returned to the provider at the conclusion of the litigation.
This topic has been much litigated in circuit courts around the state with the various circuits being roughly evenly split. In essence this ruling, assuming the defense attorney has gone through the exercise of acquiring a qualified protective order, restores Michigan's informal discovery practices to their pre-HIPAA position under Domako v Rowe, 438 Mich 347, 475 NW2d 30 (1991).