Meetings With Lawyers: Can I Participate? Do I Have To? A Healthcare Provider's Guide to Attorney Meetings After HIPAA

Question

I recently heard from an attorney who is defending a personal injury case filed by one of my patients.  The attorney wants a one-on-one meeting.  Do I have to attend?  If I want to cooperate, does HIPAA preclude the meeting absent my patient's written permission?

- Dr. Hall

Answer

Although it may be a healthcare provider's nightmare, it is routine for many defense attorneys to request face-to-face meetings with subsequent treaters after a patient files a lawsuit which pertains to their medical condition.  Such requests may come in a workers' compensation, medical malpractice, or personal injury setting.  The request is usually made because attorneys would rather informally meet and discuss a patient's condition before deciding whether to take the time for -- and go to the expense of -- a formal deposition.

Before the Health Insurance Portability and Accountability Act ("HIPAA") was enacted, Michigan courts consistently held that such ex parte meetings between physicians and attorneys were appropriate after a patient had filed suit which put her medical condition at issue.  See, Domako v Rowe, 438 Mich 347; 475 NW2d 30 (1991).  However, HIPAA contains language which protects disclosure of a patient's protected health information, which muddied the waters for a time.  Recently, the Michigan Court of Appeals clarified the issue by deciding that an ex parte meeting between a physician and attorney is not a violation of HIPAA so long as an appropriate Qualified Protective Order is in place. Holman v Rasak, 281 Mich App 507, 761 NW2d 391 (2008).  An ex parte meeting is one in which the attorney for only one of the parties is present.

If you wish to participate in such a meeting, HIPAA requires you to ensure certain precautions are in place before you discuss a patient's protected health information.  Consider:

1. You do not have to attend a meeting with a lawyer unless you want to (or unless you are under subpoena).  If you are more comfortable, you may have your own attorney present as well.
2. Find out if your patient has given written permission for the meeting.  If so, you may proceed absent HIPAA concerns.
3. If your patient has not given written consent for the meeting, ask the attorney for a copy of the Qualified Protective Order.  This document, signed by a judge, will allow you to talk freely about your patient's situation without fear of repercussion under HIPAA.  In order to adequately protect you, the Order should specifically state that you and the attorney may conduct ex parte meetings even without the written consent of your patient.  The Order should also contain a statement that the party requesting the meeting is prohibited from using or disclosing the patient's protected health information for any purpose not related to the litigation.  Finally, the Order should require that any documentation or records that you turn over to the attorney must be either destroyed or returned to you at the conclusion of the litigation.

If you have questions about a requested meeting, subpoena, or Qualified Protective Order, contact your Foster Swift legal counsel for assistance.