HIPAA's role in liability cases tested in Mich.

Michigan's Supreme Court is set to decide whether the Health Insurance Portability and Accountability Act preempts a state law allowing defendants in medical liability lawsuits to informally interview plaintiffs' other treating physicians -- a move that doctors say could put them at a disadvantage in defending such cases.

At issue is whether cardiologist Mark Rasak, DO, can seek a court order allowing his attorney to interview another physician who had treated the patient in the case, Linda Clippert. Her guardian, Andrea L. Holman, sued Dr. Rasak, alleging his failure to timely diagnose Clippert's heart condition led to a heart attack and ultimately her death. The doctor denied any negligence.

Holman refused to disclose anything other than Clippert's medical records and successfully argued to a trial court that HIPAA permitted the disclosure of only written, not oral, communications on plaintiffs' medical histories.

The Court of Appeals of Michigan in 2008 reversed the trial court ruling, however, saying HIPAA did allow for such meetings, as long as the patient was notified through one of several mechanisms, including the kind of court order Dr. Rasak sought.

The case since has made its way to the state high court, where oral arguments began on Nov. 3.

Physicians say the issue boils down to one of fairness, and rather than using HIPAA to protect patient information, plaintiff lawyers are using it to preclude defendants from obtaining important case details.

"What happens is you don't have equal access to evidence," said Julie McCann O'Connor, the defense attorney in the case. "A plaintiff, of course, could meet [informally] with a physician so it provides an advantage, potentially, to plaintiffs that would not be available equally to the defense."

The discussions also help make litigation more time- and cost-efficient, McCann O'Connor said. For example, they allow parties to investigate what information would be worthwhile pursuing for use at trial, while ruling out other irrelevant information early on.

Federal vs. state rules

While HIPAA did heighten patient confidentiality, it provided specific exceptions for litigation that do not distinguish between oral or written information, said Daniel J. Schulte. He is counsel to the Michigan State Medical Society, which filed a friend-of-the-court brief in the case.

As long as federal requirements are met, as in this case, state law still applies, Schulte said. And in Michigan, like most states, plaintiffs waive any privacy rights related to their medical condition at issue in a case. State law also satisfied the federal requirements by giving plaintiffs a chance to object to requests for personal health information, he said.

But plaintiff lawyers say HIPAA was aimed foremost at protecting patient confidentiality and takes precedence over what they call weaker state laws.

Maintaining that privacy is not possible when it comes to informal, oral interviews, where information unrelated to the case can slip out, said Donald M. Fulkerson. He authored an opposing friend-of-the-court brief in the case on behalf of the Michigan Assn. for Justice, a trade group for state trial lawyers.

"HIPAA requires that even before a plaintiff agrees to release information or is asked for it, the patient must have prior knowledge of what's being requested," he said. Even with a protective court order, "the problem [with informal discussions] is, you never know in advance what is going to be asked ... so the HIPAA requirement is not met."

Because state law conflicts with HIPAA, the federal statute automatically preempts it, Fulkerson said. Defendants still can obtain information from a patient's other treating physicians through formal depositions or written questionnaires, he added, disputing the idea that such avenues significantly add to litigation time and expense.

Holman's attorney did not return calls for comment.

Courts split

Courts have diverged over whether HIPAA completely forecloses informal, oral interviews in personal injury cases, according to court records in the case. States also have split over whether such discussions are permitted, even before HIPAA came into play.

But the Michigan Supreme Court in a 1991 precedent validated the use of such interviews, McCann O'Connor noted. The high court in Domako v. Rowe said "such informal methods are to be encouraged, for they facilitate early evaluation and settlement of cases, with a resulting decrease in litigation costs." Justices also found "no sound legal or policy grounds for restricting access to [a] witness" once the physician-patient privilege is waived.

Because it is still possible for defendants to comply with both federal and state standards, that precedent should stand, McCann O'Connor said.

"The Michigan Supreme Court considered every issue raised about disclosing information that shouldn't be disclosed and said the stronger policy, once a person puts a condition at issue, is to allow equal access to that information," she said. "Really the focus of [plaintiff lawyers'] argument is, 'Michigan, you shouldn't allow this.' But that was settled here 20 years ago."