Supreme Court Approves of Private Communications Between Defense Counsel and Plaintiffs' Treating Physicians

The Supreme Court has now clarified its 2008 ruling in Moreland v. Austin, in which the Court ruled that HIPAA preempts Georgia law with regard to ex parte communications between defense counsel and plaintiffs’ prior treating physicians because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians.

Before HIPAA, the Georgia law had always been that a plaintiff waives his/her right to privacy with regard to medical records that are relevant to a medical condition the plaintiff placed in issue in a civil lawsuit. Therefore, once a plaintiff put his/her medical condition in issue, the defendant could seek plaintiff’s otherwise privileged health information by formal discovery or informally, by communicating orally with a plaintiff’s physician.

In Baker, the Supreme Court found that HIPAA does not address the propriety of ex parte interviews and neither its text nor its regulations authorize or prohibit these interviews. Therefore, ex parte interviews may be conducted under HIPAA if the procedural requirements for protecting information disclosed during these interviews had been satisfied.

The road map now given by the Supreme Court for allowing such interviews is for defense counsel to request a qualified protective order from the trial court which: a) prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and b) requires the return to the medical provider or destruction of the protected health information (including all copies made) at the end of the litigation. In any case in which an interview of this type is sought, the plaintiff would not likely have a valid argument against such interviews simply on the basis that it invades his or her privacy.

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About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.