Holman v. Rasak, Docket No. 137993.

• Decision Date: 13 July 2010
• Docket Number: Docket No. 137993.,Calendar No. 5.
• Citation: 486 Mich. 429,785 N.W.2d 98
• Parties: Andrea L. HOLMAN, Personal Representative of the Estate of Linda Clippert, Deceased, Plaintiff-Appellant, v. Mark RASAK D.O., Defendant-Appellee.
• Court: Michigan Supreme Court

486 Mich. 429

785 N.W.2d 98

Andrea L. HOLMAN, Personal Representative of the Estate of Linda Clippert, Deceased, Plaintiff-Appellant,

v.Mark RASAK D.O., Defendant-Appellee.

Docket No. 137993.

Calendar No. 5.

Supreme Court of Michigan.

Argued Nov. 3, 2009.

Decided July 13, 2010.

Blum, Konheim, Elkin & Ceglarek (by Joseph L. Konheim and Kamron K. Lessani), Southfield, for plaintiff.

O'Connor, DeGrazia, Tamm & O'Connor, P.C. (by Julie McCann O'Connor, Bloomfield Hills, and Drew W. Broaddus, Farmington Hills), for defendant.

Donald M. Fulkerson, for amicus curiae the Michigan Association for Justice.

Siemion Huckabay, P.C. (by Raymond W. Morganti), for amicus curiae the Michigan Defense Trial Counsel, Inc.

Fraser Trebilcock Davis & Dunlap, P.C. (by Graham K. Crabtree and Mark R. Fox), for amicus curiae ProAssurance Casualty Company and American Physicians Assurance Corporation.

Kitch Drutchas Wagner Valitutti & Sherbrook (by Beth A. Wittman and Susan Healy Zitterman) for amicus curiae the Michigan Health and Hospital Association.

Kerr, Russell and Weber, PLC (by Daniel J. Schute and Michael N. Pappas), for amicus curiae the Michigan State Medical Society.

Opinion

CORRIGAN, J.

We granted leave to consider whether the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., permits ex parte interviews by defense counsel with treating physicians under a qualified protective order. We hold that ex parte interviews, which are permitted under Michigan law, are also consistent with HIPAA regulations, provided that "reasonable efforts have been made ... to secure a qualified protective order that meets the requirements of [45 CFR 164.512(e)(1)(v) ]." 45 CFR 164.512(e)(1)(ii)(B). Accordingly, we affirm the judgment of the Court of Appeals.

I. FACTS AND PROCEEDINGS

The Court of Appeals summarized the relevant facts and trial court proceedings:

Plaintiff filed this wrongful-death medical-malpractice action alleging that defendant had failed to properly diagnose or treat plaintiff's decedent, Linda Clippert, thereby proximately causing her death. Defendant sought to interview Clippert's treating physician, but plaintiff refused to waive Clippert's confidentiality rights under the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq. Plaintiff signed a waiver allowing the release of medical records, but refused to provide a release for oral communications. Defendant moved for a qualified protective order to permit an ex parte interview with Clippert's treating physician, but the circuit court denied the motion. The court concluded that "the HIPAA provision relative to a protective order only ... pertains to documentary evidence" and "that HIPAA does not authorize ex parte oral interviews." [ Holman v. Rasak, 281 Mich.App. 507, 508, 761 N.W.2d 391 (2008).]

The Court of Appeals granted defendant's application for leave to appeal and concluded that defense counsel may conduct an ex parte interview with aplaintiff's treating physician "if a qualified protective order, consistent with45 CFR 164.512(e)(1), is first put in place." Id. at 513, 761 N.W.2d 391. The Court "agree[d] with plaintiff that HIPAA supersedes Michigan law to the extent that its protections and requirements are more stringent than those provided by state law," but disagreed with the trial court's conclusion "that a defendant's ex parte interview with a treating physician may not be the subject of a qualified protective order under HIPAA." Id. at 511-512, 761 N.W.2d 391. It reasoned that the relevant HIPAA regulation, 45 CFR 164.512(e)(1)(ii), does not exclude oral communication from the regulations governing disclosure of protected health information. Id. at 512, 761 N.W.2d 391. Moreover, "45 CFR 160.103 specifically provides that HIPAA applies to both oral and written information, and 45 CFR 164.512(e)(2) makes clear that the regulations concerning qualified protective orders 'do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.' " Id., quoting 45 CFR 164.512(e)(2). The panel also rejected plaintiff's argument that defendants may rely on written medical records and conduct depositions if more information is required. It quoted this Court's observation in Domako v. Rowe, 438 Mich. 347, 361, 475 N.W.2d 30 (1991), that informal interviews are " 'routine practice' " and that " '[t]here is no justification for requiring costly depositions ... without knowing in advance that the testimony will be useful.' " Holman, 281 Mich.App. at 512-513, 761 N.W.2d 391. The panel reversed the trial court's order and remanded for further proceedings.

We granted plaintiff's application for leave to appeal to consider whether HIPAA permits defense counsel to seek ex parte interviews with a plaintiff's treating physicians.

II. HIPAA

Congress enacted the Health Insurance Portability and Accountability Act in 1996. HIPAA provided that if Congress did not enact "legislation governing standards with respect to the privacy of individually identifiable health information within 36 months after HIPAA was enacted," the Secretary of Health and Human Services would be required to "promulgate final regulations containing such standards...." PL 104-191, § 264(c)(1), 110 Stat. 2033. Pursuant to that legislative mandate, 45 CFR 164.502(a) provides that "[a] covered entity may not use or disclose protected health information, except as permitted or required by this subpart...." ¹

[785 N.W.2d 102, 486 Mich. 435]

"[C]overed entity" means: (1) "[a] health plan"; (2) "[a] health care clearinghouse," or (3) "[a] health care provider who transmits any health information in electronic form in connection with a transaction" for which the Department of Health and Human Services (HHS) has adopted standards under HIPAA. 45 CFR 160.103. With exceptions not relevant here, "protected health information" means "individually identifiable health information" transmitted by or maintained in electronic media or "[t]ransmitted or maintained in any other form or medium." 45 CFR 160.103. "Health information" includes both "oral" information and information that is "recorded in any form or medium...." Id. "Individually identifiable health information"

is information that is a subset of health information, including demographic information collected from an individual, and:

(1) [i]s created or received by a health care provider, health plan, employer, or health care clearinghouse; and

(2) [r]elates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and

(i) [t]hat identifies the individual; or

(ii) [w]ith respect to which there is a reasonable basis to believe the information can be used to identify the individual. [ Id.]

Thus, "protected health information" is any health information, oral or recorded, that is individually identifiableand transmitted or maintained by a covered entity in any form or medium. 45 CFR 160.103. ²

III. STANDARD OF REVIEW

Although a trial court's decision on a motion regarding discovery is reviewed for an abuse of discretion, People v. Phillips, 468 Mich. 583, 587, 663 N.W.2d 463 (2003), this case presents questions of statutory interpretation, which we review de novo as questions of law, In re Investigation of March 1999 Riots, 463 Mich. 378, 383, 617 N.W.2d 310 (2000).

IV. ANALYSIS

Under Michigan law, defense counsel in a medical malpractice action is permitted to seek an ex parte interview with a plaintiff's treating physician once the plaintiff has waived the physician-patient privilege with respect to that physician. Domako, 438 Mich. at 361, 475 N.W.2d 30. MCL 600.2157 establishes the physician-patient privilege and also sets forth the rule on waiver of the privilege. It provides, in relevant part:

Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribefor the patient as a physician, or to do any act for the patient as a surgeon. If the patient brings an action against any defendant to recover for any personal injuries, or for any malpractice, and the patient produces a physician as awitness in the patient's own behalf who has treated the patient for the injury or for any disease or condition for which the malpractice is alleged, the patient shall be considered to have waived the privilege provided in this section as to another physician who has treated the patient for the injuries, disease, or condition. [Emphasis added.]

In Domako, 438 Mich. at 361, 475 N.W.2d 30, we explained that

"[N]o party to litigation has anything resembling a proprietary right to any witness's evidence. Absent a privilege no party is entitled to restrict an opponent's access to a witness...." While we recognize that the physician is different from an ordinary witness as a result of the confidential nature of the physician's potential testimony, that confidentiality is adequately preserved by the physician-patient privilege. Once the privilege is waived, there are no sound legal or policy grounds for restricting access to the witness. [ Domako, 438 Mich. at 361, 475 N.W.2d 30, quoting Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C., 1983) (emphasis added).]

With respect to ex parte interviews, we explained:

Although the rules are silent on informal methods of discovery, prohibition of all ex parte interviews would be inconsistent with the purpose of providing equal access to relevant evidence and efficient, cost-effective litigation. The omission of interviews from the court rules does not mean that they are prohibited, because the rules are not meant to be exhaustive. See MCR 2.302(F)(2) (permitting parties

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