Law v. Zuckerman, No. CIV.A. CBD-01-1429.

CourtU.S. District Court — District of Maryland
Writing for the CourtDay
Citation307 F.Supp.2d 705
Decision Date27 February 2004
Docket NumberNo. CIV.A. CBD-01-1429.
PartiesRosalynn LAW, Plaintiff, v. David J. ZUCKERMAN, M.D., Defendant.
307 F.Supp.2d 705
Rosalynn LAW, Plaintiff,
v.
David J. ZUCKERMAN, M.D., Defendant.
No. CIV.A. CBD-01-1429.
United States District Court, D. Maryland, Southern Division.
February 27, 2004.

Page 706

Allen T. Eaton, III, LaVern D. Wiley, Eaton and McClellan, Washington, DC, Theresa M. Blanco, Eaton and McClellan, Philadelphia, PA, for Plaintiff.

Benjamin S. Vaughan, Karen A. Ferretti, Armstrong, Donohue, Ceppos and Vaughan Chtd, Rockville, MD, for Defendant.

MEMORANDUM OPINION DENYING PLAINTIFF'S ORAL MOTION TO PRECLUDE DEFENSE COUNSEL FROM CONDUCTING EX PARTE INTERVIEWS WITH PLAINTIFF'S TREATING PHYSICIAN

DAY, United States Magistrate Judge.


The Court is faced with an apparent issue of first impression in the Fourth Circuit in this medical malpractice action. The question presented is whether adverse counsel's ex parte discussions with a treating physician regarding the scope of the physician's care violates the Health Insurance and Portability Accountability Act of

Page 707

1996, 42 U.S.C. 1320d et seq. ("HIPAA"). The Court finds that in the absence of strict compliance with HIPAA such discussions are prohibited.

Plaintiff Rosalynn Law ("Plaintiff"), brought this medical malpractice action against Defendant David J. Zuckerman, M.D., ("Defendant"). Jurisdiction is based on diversity of citizenship, and therefore Maryland substantive law must be applied where it does not conflict with controlling federal law. This Court heard arguments on January 7, 2004 and January 8, 2004 pursuant to Plaintiff's oral motion to prohibit defense counsel from conducting ex parte interviews with Plaintiff's treating physician. ("Plaintiff's Motion"). After review of the relevant statutes and case law, the Court denied Plaintiff's Motion. The Court now supplements and further articulates its opinion.

There are two questions before the Court raised by Plaintiff's Motion. The first was whether Defendant's ex parte pre-trial contacts with Plaintiff's treating physician, Dr. Thomas Pinckert, were a violation of HIPAA. Second, if those contacts were a violation of HIPAA, whether the remedy was to preclude Defendant from having other ex parte communications with Dr. Pinckert. This Court finds that a violation of HIPAA did occur but the remedy requested is not appropriate.

A jury trial commenced in this case on January 6, 2004. Plaintiff alleged that the surgical treatment she received from Defendant rendered her cervix incompetent. Defendant performed a laser ablation procedure to remove dysplasia, or abnormal cells, from Plaintiff's cervix. Plaintiff's claim of malpractice is that during the procedure Defendant used laser power settings which caused collateral damage to her cervical tissue. Thereafter, Plaintiff became pregnant and increasingly concerned about her ability to carry a child. Plaintiff sought medical advice as to how best to carry the child to term. One treatment alternative available to Plaintiff was the placement of a cervical cerclage. Simply stated, the cerclage is a method of placing sutures on the cervical tissue so as to minimize the dilation of the cervical opening during the course of pregnancy. Among Plaintiff's alleged damages were the costs and injuries associated with the placement of a permanent cerclage by Dr. Pinckert.

At the end of the second day of trial, Plaintiff raised an objection to ex parte communications that ma9 have occurred between Dr. Thomas Pinckert and Defendant's counsel. Dr. Pinckert had long before been identified as one of Defendant's fact witnesses in the Pre-trial Statement prepared by the parties and approved by the Court. Dr. Pinckert was called to testify as Defendant's first fact witness and to explain that Plaintiff's alleged damages due to the placement of the cerclage were the result of an elective surgical procedure and not a procedure compelled by the alleged negligent care of Defendant. Defendant's counsel met with Dr. Pinckert after Plaintiff provided her medical records to Defendant as part of discovery. Plaintiff was never notified in advance that Defendant's counsel would pursue ex parte communications with her treating physician. Plaintiff asserts that any attempt by the defense to have such communications is a violation of HIPAA.

Plaintiff's sole request is for the issuance of an order precluding Dr. Pinckert from discussing Plaintiff's treatment and care with defense counsel or, in the alternative, to order Defendant to disclose all communications held with Dr. Pinckert and the details of Dr. Pinckert's expected testimony at trial. Transcript of Motions Hearing ("Trancript") January 7, 2004, at 4-5. Defendant's counsel stated that ex parte communications outside the four corners

Page 708

of Dr. Pinckert's medical records regarding Plaintiff had not taken place, and that it was not the intention of the defense to do so at any time. Transcript, January 7, 2004, at 4-5; Transcript, January 8, 2004, at 6-7.

The Court initially disagreed with Plaintiff as to the application of HIPAA. The Court then issued an order permitting both sides to have ex parte communications with Dr. Pinckert regarding his care and treatment for purposes of the present case before he testified as a fact witness. Upon further reflection, the Court believes Plaintiff correctly discerned the applicability of HIPAA, but the remedy remains unchanged.

Discussion

A. The ex parte contacts between Defendant and Dr. Pinckert are governed by HIPAA not Maryland law.

Maryland law does not prohibit ex parte communications "between a lawyer and the treating physician of an adverse party who has placed her medical condition at issue." Butler-Tulio v. Scroggins, 139 Md.App. 122, 150, 774 A.2d 1209 (2001). Nor does HIPAA prohibit all ex parte communications with a treating physician for an adverse party. Mere contact between Plaintiff's physician and Defendant's counsel is not regulated by HIPAA. Such contact could include discussion of many benign topics, including but not limited to, the best methods for service of a subpoena, determining convenient dates to provide trial testimony, or the most convenient location for the anticipated deposition of the physician. However, HIPAA clearly regulates the methods by which a physician may release a patient's health information, including "oral" medical records. "The HIPAA regulations permit discovery of protected health information so long as a court order or agreement of the parties prohibits disclosure of the information outside the litigation and requires the return of the information once the proceedings are concluded." Helping Hand, LLC v. Baltimore County, 295 F.Supp.2d 585 (D.Md.2003).

HIPAA and the standards promulgated by the Secretary of Health and Human Services ("Secretary") in the Code of Federal Regulations set forth the baseline for the release of health information. A patient's health information may be disclosed pursuant to 45 C.F.R. § 164.512(e)(1)(i), which states that disclosure is permitted "in response to an order of a court ... provided that the covered entity discloses only the protected health information expressly authorized by such order." Health information includes

any information, whether oral or recorded in any form or medium, that: (1) is created or received by a health care provider ...; and (2) relates 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.

45 C.F.R. § 160.103. A trial or deposition subpoena is appropriately treated differently from an order of the Court. When medical information is to be released in response to a subpoena or discovery request, the health care provider must receive satisfactory assurance that: (1) there have been good faith attempts to notify the subject of the protected health information in writing of the request and that subject has been given the opportunity to object; or (2) reasonable efforts have been made by the requesting party to obtain a qualified protective order. 45 C.F.R. § 164.512(e)(1)(ii)(A) and (B).

HIPAA and the related provisions established in the Code of Federal Regulations expressly supercede any contrary

Page 709

provisions of state law except as provided in 42 U.S.C. § 1320d-7(a)(2). Under the relevant exception, HIPAA and its standards do not preempt state law if the state law relates to the privacy of individually identifiable health information and is "more stringent" than HIPAA's requirements. 42 U.S.C. § 1320d-7(a)(2)(B)(referring back to the Historical and Statutory notes to 42 U.S.C § 1320d-2); 45 C.F.R. § 160.203.

Defendant's counsel has argued that the Maryland Confidentiality of Medical Records Act, Md. Code Ann. Health-Gen. I § 4-306(b)(3), ("MCMRA"), governs this case and not HIPAA because MCMRA's rule governing disclosure is mandatory and therefore more restrictive than HIPAA's permissive rule governing disclosure. Transcript, January 7, 2004, at 2-3. Section 4-306(b)(3) states

(b...

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39 practice notes
  • Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., No. 18904.
    • United States
    • Supreme Court of Connecticut
    • November 11, 2014
    ...this claim further, other than to note that state court pretrial practices must be HIPAA compliant; see, e.g., Law v. Zuckerman, 307 F.Supp.2d 705, 710–11 (D.Md.2004) ; Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 880 N.E.2d 831, 850 N.Y.S.2d 345 (2007) ; a requirement that extends to responses t......
  • State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, No. 35738.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2011
    ...“HIPAA”). “HIPAA and [its corresponding] standards ... set forth the baseline for the release of health information.” Law v. Zuckerman, 307 F.Supp.2d 705, 708 (D.Md.2004). To promote the “strong federal policy in favor of protecting the privacy of patient medical records,” id. at 711, “Cong......
  • Haage v. Zavala, Nos. 2-19-0499
    • United States
    • United States Appellate Court of Illinois
    • March 13, 2020
    ...information systems.’ " (quoting South Carolina Medical Ass'n v. Thompson , 327 F.3d 346, 348 (4th Cir. 2003) ); Law v. Zuckerman , 307 F. Supp. 2d 705, 710 (D. Md. 2004) ("Congress enacted HIPAA, in part, to protect the security and privacy of individually identifiable health information."......
  • State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, No. 35738
    • United States
    • Supreme Court of West Virginia
    • April 1, 2011
    ..."HIPAA and [its corresponding] standards . . . set forth the baseline for the release of health information." Law v. Zuckerman, 307 F. Supp. 2d 705, 708 (D. Md. 2004). To promote the "strong federal policy in favor of protecting the privacy of patient medical records," id. at 711, "Congress......
  • Request a trial to view additional results
39 cases
  • Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., No. 18904.
    • United States
    • Supreme Court of Connecticut
    • November 11, 2014
    ...this claim further, other than to note that state court pretrial practices must be HIPAA compliant; see, e.g., Law v. Zuckerman, 307 F.Supp.2d 705, 710–11 (D.Md.2004) ; Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 880 N.E.2d 831, 850 N.Y.S.2d 345 (2007) ; a requirement that extends to responses t......
  • State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, No. 35738.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2011
    ...“HIPAA”). “HIPAA and [its corresponding] standards ... set forth the baseline for the release of health information.” Law v. Zuckerman, 307 F.Supp.2d 705, 708 (D.Md.2004). To promote the “strong federal policy in favor of protecting the privacy of patient medical records,” id. at 711, “Cong......
  • Haage v. Zavala, Nos. 2-19-0499
    • United States
    • United States Appellate Court of Illinois
    • March 13, 2020
    ...information systems.’ " (quoting South Carolina Medical Ass'n v. Thompson , 327 F.3d 346, 348 (4th Cir. 2003) ); Law v. Zuckerman , 307 F. Supp. 2d 705, 710 (D. Md. 2004) ("Congress enacted HIPAA, in part, to protect the security and privacy of individually identifiable health information."......
  • State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, No. 35738
    • United States
    • Supreme Court of West Virginia
    • April 1, 2011
    ..."HIPAA and [its corresponding] standards . . . set forth the baseline for the release of health information." Law v. Zuckerman, 307 F. Supp. 2d 705, 708 (D. Md. 2004). To promote the "strong federal policy in favor of protecting the privacy of patient medical records," id. at 711, "Congress......
  • Request a trial to view additional results

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