Secret Conversations in Medical Malpractice Cases

Maryland medical malpractice attorneys must follow certain pre-lawsuit requirements before pursuing a medical malpractice case in court. One such requirement is to certify with the Health Care Alternative Dispute Resolution Office of Maryland, through a qualified physician, that the defendant doctor’s medical negligence caused injury to the plaintiff. This is a useful prerequisite because it helps weed-out frivolous lawsuits.

Once a lawsuit is underway, Maryland law permits the parties of the lawsuit to obtain relevant case information from various sources in order to move forward with the case. For example, defense attorneys have the ability to obtain relevant information by subpoenaing the plaintiff’s medical records, submitting written questions to the parties, and deposing plaintiff’s treating health care providers. However, defense attorneys often seek alternative methods to obtain information, such as requesting authorization from the plaintiff to speak with the plaintiff’s treating health care providers in private. When the plaintiff respectfully declines to sign such an authorization, the defendant files a motion for ex parte interviews with the plaintiff’s treating health care providers. In plain English, by filing such a motion, the defendant is seeking permission from the court to speak with the plaintiff’s doctors, nurses, and other treating health care providers in secret, without recording the conversation, and without the presence of the plaintiff’s attorneys. Obviously this secret communication is troubling for many reasons. Without the presence of opposing counsel, there is a real possibility of irrelevant private medical information being disclosed unwittingly by the health care provider in violation of HIPAA. Additionally, when conversations are not formally transcribed, it becomes difficult for the plaintiff to prepare for trial and to object to irrelevant information being presented at trial. Furthermore, the secrecy of such interactions creates an environment ripe for abuse – particularly in situations where the defendant and the treating health care provider are covered by the same insurance company. Consequently, we strongly oppose these motions in court.

Recently, a federal court in Florida addressed these secret conversations with the plaintiff’s treating health care providers. Reviewing how courts in other jurisdictions, particularly federal courts, address ex parte (secret) interviews is important because their reasoning may be persuasive to a Maryland judge. By way of background, Florida attempted to eliminate legal battles over ex parte interviews by making it a pre-suit requirement for a medical malpractice plaintiff to sign an authorization permitting defense attorneys to communicate with his or her treating health care providers in absolute secrecy. See Fla. Stat. § 766.1065(3)(E). The authorization would technically be limited to the relevant issues only, but nobody would be present to determine pertinence or to enforce such limitation. This statute was challenged in federal court by a plaintiff seeking to file a medical malpractice case, but unwilling to sign the pre-suit authorization. Glen Murphy v. Adlofo C. Dulay, M.D., et al.United States District Judge Robert L. Hinkle declared that the Florida statute conflicted with HIPAA and was preempted by federal law.

In the Murphy case, the court explained briefly that HIPAA is a federal law that, among other things, protects your private health information, which includes the type of information that would be disclosed in an ex parte interview. Florida’s law attempted to lessen the burden on obtaining private health information by forcing the plaintiff to sign an authorization before granting him or her permission to file a lawsuit. Any state law concerning the disclosure of your private health information that is less strict with protecting your information than HIPAA is pushed aside in favor of HIPAA.

HIPAA provides avenues for the defense to obtain protected health information as is often required for litigation. One method that the defendant can use to obtain the plaintiff’s protected health information is with a court order that limits exactly what protected health information may be disclosed. Compliance with such order is possible when it comes to document production as it can be confirmed that the health care provider is only providing the authorized information and the plaintiff has an opportunity to object. However, it is impossible to know if the health care provider is complying with a court order if the information is produced through a secret unrecorded conversation. Another method is through a valid authorization signed by the plaintiff. An authorization is valid when it represents the plaintiff’s consent to the disclosure of information. The court in Murphy explained that when a state law forces a plaintiff to sign an authorization as a prerequisite to filing a lawsuit, it removes the plaintiff’s consent and replaced it with mandated compliance with state law. In other words, the statute is an attempt to circumvent the safeguards provided by, and is less restrictive than, HIPAA. As such, the court held that Florida’s law was invalid and the defense attorneys were precluding from conducting secret interviews with the plaintiff’s treating health care providers.

In the Murphy case, the court explained briefly that HIPAA is a federal law that, among other things, protects your private health information, which includes the type of information that would be disclosed in an ex parte interview. Florida’s law attempted to lessen the burden on obtaining private health information by forcing the plaintiff to sign an authorization before granting him or her permission to file a lawsuit. Any state law concerning the disclosure of your private health information that is less strict with protecting your information than HIPAA is pushed aside in favor of HIPAA.

HIPAA provides avenues for the defense to obtain protected health information as is often required for litigation. One method that the defendant can use to obtain the plaintiff’s protected health information is with a court order that limits exactly what protected health information may be disclosed. Compliance with such order is possible when it comes to document production as it can be confirmed that the health care provider is only providing the authorized information and the plaintiff has an opportunity to object. However, it is impossible to know if the health care provider is complying with a court order if the information is produced through a secret unrecorded conversation. Another method is through a valid authorization signed by the plaintiff. An authorization is valid when it represents the plaintiff’s consent to the disclosure of information. The court in Murphy explained that when a state law forces a plaintiff to sign an authorization as a prerequisite to filing a lawsuit, it removes the plaintiff’s consent and replaced it with mandated compliance with state law. In other words, the statute is an attempt to circumvent the safeguards provided by, and is less restrictive than, HIPAA. As such, the court held that Florida’s law was invalid and the defense attorneys were precluding from conducting secret interviews with the plaintiff’s treating health care providers.

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