Ex Parte Communications With Treating Health Care Providers: Doess HIPAA Change Missouri Law?
Ted Agniel1 |
Mary L. Reitz1 |
Reiad M. Khouri1 |
Wendy D. Kasten1 |
I. Introduction
In Missouri, it has been common practice for attorneys in personal injury cases to obtain information from non-party health care providers regarding the health care treatment at issue in a lawsuit. The attorney gives the provider an authorization executed by the injured person or their representative permitting the disclosure of required information related to the conditions at issue in the lawsuit. Traditionally the health care provider may speak ex parte with the attorney for a party so long as those conversations do not exceed the scope of the authorization.
Since the enactment of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), a debate has arisen as to the role HIPAA plays in ex parte communications with non-party health care providers in Missouri. Some attorneys argue that HIPAA bars defense attorneys from engaging in ex parte communications because it preempts Missouri law allowing such contacts. Other attorneys maintain that HIPAA does not preempt Missouri law regarding ex parte communications. No Missouri appellate court has addressed HIPAA’s role in ex parte communications with treating health care providers.
This article analyzes HIPAA, its purpose and scope, and concludes that HIPAA does not preempt Missouri law on this issue. Specifically, HIPAA does not create a federal physician-patient privilege, nor does it contain a provision addressing ex parte communications. Therefore, Missouri’s physician-patient privilege and waiver thereof is not contrary to HIPAA and is not preempted by HIPAA. As a result, HIPAA should not be a factor in decisions regarding ex parte communications.
II. Missouri Law Regarding Ex Parte Communications
In Missouri, patient communications with health care providers are protected by statute.2 A waiver of the physician-patient privilege occurs with the filing of a personal injury case putting the patient’s medical condition at issue.3 The scope of the waiver is confined to information the health care provider possesses concerning the conditions and injuries at issue, and the plaintiff’s physician may therefore discuss care of the plaintiff relevant to these matters with either party’s attorneys.4
In addition to the physician-patient privilege, the physician has a fiduciary duty not to disclose confidential medical information.5 The fiduciary duty is not violated as long as the disclosure is within the scope of the waiver.6 If the physician engages in ex parte communication beyond the scope of the waiver, the physician may be liable in tort to the patient for breach of the fiduciary duty.7 The decision to speak with an attorney belongs solely to the physician, not to the plaintiff or the defendant.8 Therefore, the physician has the choice whether or not to engage in ex parte communications. As such, despite the privilege being waived, Missouri courts do not compel health care providers to engage in ex parte communications.9
III. The Purpose of HIPAA and HIPAA’s Privacy Regulations
Congress passed HIPAA in an effort to further federal medical goals of increased access to health care by expanding patients’ portability and renewability of insurance.10 “During the legislative process” there were concerns “that innovations in technology might endanger the ability to protect the privacy of health information.”11 It was only then that Congress decided that privacy regulations were needed.12 Thus, the United States Department of Health and Human Services (“HHS”) promulgated regulations regarding the disclosure of “protected health information” (“PHI”).13 PHI is information that relates to the physical or mental health or condition of an individual, the provision of health care to the individual, or the payment for health care.14 PHI also includes “individually identifiable health information,”15 which is information that either identifies an individual or can be used to identify an individual.16 These HHS regulations took effect in April 2003, and provide that a covered entity may not use or disclose PHI except as permitted by the regulations.17 Covered persons and entities that must comply with these regulations include hospitals, health plans, health care clearinghouses, and most health care providers, including physicians.18
HIPAA, however, does not eliminate all disclosure of PHI, and, in fact, allows for disclosure pursuant to an authorization from the patient.19 45 C.F.R. § 164.502(a)(1)(iv) (2007).
Additionally, HIPAA even provides multiple exceptions when an authorization is not required.20 Two such exceptions are when the use or disclosure of the PHI is “required by law” or “in the course of any judicial or administrative proceeding.”21 Both of these exceptions allow a subpoena or court order to disclose the PHI.22 In practice, however, many providers refuse to honor a subpoena for deposition or trial without an accompanying authorization signed by the patient.
IV. HIPAA Does Not Preempt Missouri’s Physician-Patient Privilege and Waiver Thereof
HIPAA only preempts “contrary” provisions of state law.23 Therefore, in a preemption analysis, courts must first determine whether state law is contrary to HIPAA. State law is “contrary” to HIPAA if “(1) A covered entity would find it impossible to comply with both the State and federal requirements or (2) The … State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of the privacy sections of HIPAA.24 Missouri law is not contrary to HIPAA because it is possible to comply with both Missouri law and HIPAA, and Missouri law is not an obstacle to the purposes and objectives of HIPAA.
1. It is possible to comply with both Missouri law and HIPAA because HIPAA does not create a physician-patient privilege and does not prohibit ex parte communications with physicians.
The physician-patient privilege in Missouri is provided by state statute.25 HIPAA does not create a federal physician-patient privilege.26 Further, Rule 501 of the Federal Rules of Evidence states that “the privilege of a … person … shall be determined in accordance with State law.”27 Additionally, HIPAA contains no provisions that expressly mention ex parte communications, including ex parte communications with physicians.28 The absence of such provisions from HIPAA is logical, since the purpose of HIPAA was to improve portability of and access to health insurance coverage, and not to create a federal physician-patient privilege.29 As discussed above, there are no provisions of HIPAA analogous to Missouri state law regarding physician-patient privilege, the waiver of that privilege, or ex parte communications.
Thus, there should be no finding that state law is contrary to HIPAA when there is no HIPAA provision that is analogous to the state law.30
Additionally, Missouri law and HIPAA are not contrary because the parties can comply with both the state and federal requirements. HIPAA allows disclosure of protected health information pursuant to an authorization from the patient or the patient representative.31 HIPAA also allows disclosure of PHI without the patient’s written authorization during the course of a judicial or administrative proceeding, pursuant to a court order or subpoena.32 As evident, Missouri law is not contrary to HIPAA and, therefore, is not preempted by HIPAA.
2. Missouri law is not an obstacle to the purposes and objectives of HIPAA.
Far from being an obstacle to HIPAA’s purposes and objectives, Missouri law in fact advances those purposes and objectives by implementing rules to ensure that confidential information will not be disclosed unless it is properly authorized.33 Missouri law requires a plaintiff to “execute a medical authorization” permitting disclosure of PHI relevant to the matter at issue.34 To be valid, the authorization must be tailored to the pleadings, “limited in time” and “addressed to specific health care providers.”35 Missouri law also limits ex parte communications between defense counsel and physicians to information relevant to the lawsuit.36 If any additional PHI is discussed, the plaintiff is entitled to seek damages in a private cause of action against the physician.37 To further ensure that confidential information is not disclosed, covered entities may refuse to enter into ex parte communications with an attorney.38 In such situations, the attorney can only speak with the physician through a formal deposition.39 Because Missouri law is not an obstacle to HIPAA’s accomplishment, purposes, and objectives, it is not contrary to HIPAA and as such is not preempted.
Further, HIPAA does not preempt state law if the “[s]tate law relates to the privacy of [individually identifiable] health information and is more stringent” than HIPAA’s requirements.40 One of the criteria for a state law to be “more stringent” is that the law provides greater privacy protection for the individual.41 As discussed above, Missouri law provides greater privacy protection for the individual than HIPAA and is, therefore, more stringent.
V. It Is Unjust To Use Hipaa To Preempt The Fair And Reasonable Discovery Procedures Established By Missouri Law
Missouri law currently provides a fair and reasonable method for discovery of treating health care provider information through ex parte communications. Applying HIPAA to bar ex parte communications by defense counsel, while allowing plaintiffs’ attorneys to continue to use this method of informal discovery, permits plaintiffs to use HIPAA as a shield and a sword.42 This is fundamentally unfair and should be prohibited. The Supreme Court of Missouri has stated:
[I]t is not human, natural, or understandable to claim protection from exposure by asserting a privilege for communications to doctors at the very same time when the patient is parading before the public the mental or physical condition as to which he consulted the doctor by bringing an action for damages arising from that same condition.43
Accordingly, plaintiffs should be prohibited from using HIPAA as both a sword and a shield against the fair and reasonable discovery procedures established by Missouri law.
VI. Conclusion
HIPAA permits disclosures of a plaintiff-patient’s PHI pursuant to written authorization, or pursuant to a subpoena or court order in the course of an administrative or judicial proceeding. Missouri’s statutory physician-patient privilege and its case law regarding ex parte communications with treating physicians is not contrary to HIPAA. HIPAA does not create a physician-patient privilege nor does it limit or bar ex parte communications between attorneys and treating physicians. Thus, HIPAA does not preempt Missouri’s physician-patient privilege and waiver thereof. As a result, HIPAA should not be a factor in decisions relating to ex parte communications in civil litigation and such communications should be allowed to continue pursuant to Missouri’s existing case law.
Footnotes
1 Ted Agniel is a graduate of St. Louis University Law School and is an officer at the law firm of Greensfelder, Hemker & Gale, P.C. His practice includes the defense of individuals and organizations in personal injury litigation. Mary Reitz is a graduate of St. Louis University School of Law and an officer at Greensfelder, Hemker & Gale, P.C. Her practice is dedicated to litigation, with a particular emphasis on the defense of medical negligence and catastrophic injury cases. Reiad Khouri is a graduate of St. Louis University Law School and an associate at the law firm of Greensfelder, Hemker & Gale, P.C. He represents clients in general civil and commercial litigation matters. Wendy Kasten is a graduate of St. Louis University Law School and is an associate at the law firm of Greensfelder, Hemker & Gale, P.C. She represents clients in general civil and commercial litigation matters.
2 Section 491.060(5), RSMo Supp. 2007.
3 Brandt v. Med. Def. Assocs., 856 S.W.2d 667, 671 (Mo. banc 1993).
4 Id. at 671, 674.
5 Id.at 674.
6 Id.
7 Id.
8 State ex rel. Jones v. Syler, 936 S.W.2d 805, 809 (Mo. banc 1997) (citing Brandt v. Pelican, 856 S.W.2d 658, 663 (Mo. banc 1993)).
9Brandt v. Pelican, 856 S.W.2d at 662-63.
10 See In re Diet Drug Litigation, 895 A.2d 493, 497 (N.J. Super. Ct. Law Div. 2005) (citing the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) (further citing Diane Kutzko et al., HIPAA in Real Time: Practical Implications of the Federal Privacy Rule, 51 Drake L. Rev. 403, 406 (2003))). See also Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (1996) (providing that the purpose of HIPAA is to “amend the Internal Revenue Code of 1986 to improve portability and continuity of health insurance coverage in the group and individual markets … [and] to improve access to long-term care services and coverage . . . .”).
11 In re Diet Drug Litigation, 895 A.2d at 496-97.
12 Id.
13 45 C.F.R. § 164.502 (2007).
14 42 U.S.C. § 1320d-4 (b) (2007).
15 45 C.F.R. § 160.103 (2007) (providing that individually identifiable health information is information that is a subset of health information).
16 42 U.S.C. § 1320d-6 (b) (2007); 45 C.F.R. 160.103 (2007).
17 Id. See 45 C.F.R. § 164.534 (requiring health care providers and most health plans to comply with the regulations by April 14, 2003).
18 See 42 U.S.C. §§ 1320d-1320d-1 (2007).
19 45 C.F.R. § 164.502(a)(1)(iv) (2007).
20 45 C.F.R. § 164.512 (2007).
21 45 C.F.R. § 164.512(a), (e) (2007).
22 45 C.F.R. §§ 164.103, 164.512(e)(1)(i)-(ii) (2007).
23 42 U.S.C. § 1320d-7 (2007); 45 C.F.R. § 160.203 (2007).
24 45 C.F.R. § 160.202 (2007).
25 Section 491.060(5), RSMo Supp. 2007.
26 See Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004) (stating that “[w]e do not think HIPAA is rightly understood as an Act of Congress that creates a privilege.”); Glen v. Potter, No. 04 C 7237, 2006 WL 2561181, at *3-4 (N.D. Ill. Aug. 30, 2006).
27 Fed. R. Evid. 501. See also Hulse v. Suburban Mobile Home Supply Co., No. 06-1168-WEB, 2006 WL 2927519, at *1 n.2 (D. Kan. October 12, 2006); Nw. Mem’l Hosp., 362 F.3d at 926.
28 See Smith v. Am. Home Prods. Corp. Wyeth-Averst Pharm., 855 A.2d 608, 622 (N.J. Super. Ct. Law Div. 2003) (“Nowhere in HIPAA does the issue of ex parte interviews with treating physicians, as an informal discovery device, come into view. The court is aware of no intent by Congress to displace any specific state court rule, statute or case law (e.g., Stempler) on ex parte interviews.”).
29 See Section III of this article.
30 See Beverly Cohen, Reconciling the HIPAA Privacy Rule With State Laws Regulating Ex Parte Interviews of Plaintiffs’ Treating Physicians: A Guide to Performing HIPAA Preemption Analysis, 43 Hous. L. Rev. 1091, 1129 (2006). (‘What does one do when there is a State provision and no comparable or analogous federal provision, or the converse is the case? The short answer would seem to be that since there is nothing to compare there cannot be an issue of a “contrary” requirement, and so the preemption issue is not presented.’).” Id. at 1129, fn 207 (quoting Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59,918, 59,995).
31 45 C.F.R. § 164.502(a)(1)(iv) (2007); 45 C.F.R. § 164.508 (2007).
32 45 C.F.R. § 164.512(e) (2007).
33 State ex rel. Jones v. Syler, 936 S.W.2d 805 (Mo. banc 1997).
34 Id. at 806.
35 Id. at 807.
36 Brandt v. Med. Def. Assocs., 856 S.W.2d at 674-75.
37 Id. at 675.
38 Id. at 674.
39 Id.
40 45 C.F.R. § 160.203(b) (2002).
41 45 C.F.R. § 160.202 (2002).
42 See Shropshire v. Taylor, No. 06-10682, 2006 U.S. Dist. Lexis 52943 at *7 (E.D. Mich. August 1, 2006).