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No. 137993
| Andrea L. Holman, Personal Representative of the |
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Joseph L. Konheim |
| Estate of Linda Clippert, Deceased, |
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Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Oakland - McDonald, J.) |
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| Mark Rasak, D.O., |
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Julie McCann O'Connor |
Defendant-Appellee. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Plaintiff-Appellant's Reply Brief>>
Defendant-Appellee's Brief on Appeal >>
Michigan Association for Justice's Amicus Curiae Brief>>
Michigan Defense Trial Counsel's Amicus Curiae Brief>>
Michigan Health and Hospital Association's Amicus Curiae Brief>>
Michigan State Medical Society's Amicus Curiae Brief>>
ProAssurance Casualty Company and American Physicians Assurance Corporation's Amici Curiae Brief>>
Background
Andrea L. Holman, as personal representative for the estate of Linda Clippert, sued Dr. Mark Rasak, an interventional cardiologist, for medical malpractice. Clippert, who died after suffering an acute myocardial infarction, had been under Rasak’s care. During discovery, Holman refused to allow disclosure of anything other than Clippert’s medical records. Just before the close of the discovery period, Rasak filed a motion asking the court to enter a qualified protective order to allow his attorney to conduct an ex parte interview – an interview without the plaintiff’s attorney being present – with Dr. Gary Goodman, a surgeon who had performed procedures on Clippert. Holman objected, arguing that under The Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR 164.512(e), a qualified protective order could only pertain to documentary evidence because HIPAA requires the return or destruction of all protected health information. The trial court, after a hearing, agreed with Holman and denied the motion. In a published opinion, the Court of Appeals reversed, concluding that HIPAA does allow a court to issue a qualified protective order permitting defense counsel’s ex parte interview with a treating physician. “In Michigan, it was well established before the enactment of HIPAA that the filing of a lawsuit for personal injury or malpractice generally waived the statutory physician-patient privilege with respect to any injury, disease, or condition at issue in the lawsuit, MCL 600.2157, and that a defendant was permitted to meet ex parte with the injured party’s treating physician as part of discovery,” the appellate court noted. But under HIPAA, “filing a lawsuit does not waive the confidentiality of health information, and unless the patient gives written consent or enters into an agreement, see 45 CFR 164.508; 45 CFR 164.510, the patient’s physician may only disclose confidential health information under limited conditions,” the court said. HIPAA supersedes Michigan law to the extent that HIPAA’s protections and requirements are more stringent, so without “written consent [by the plaintiff] or an agreement for the disclosure of confidential health information … a treating physician may only disclose such information under conditions set out in the HIPAA regulations, one of which provides for qualified protective orders,” the Court of Appeals stated. “But we disagree with the circuit court’s determination that a defendant’s ex parte interview with a treating physician may not be the subject of a qualified protective order under HIPAA. While 45 CFR 164.512(e)(1)(ii) does not specifically address oral communications, neither does it exclude oral or spoken information from the regulations governing disclosure.” Holman appeals.
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