HIPAA: Its Impact on Ex Parte Disclosures with an Adverse Party's Treating Physician

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) has a significant impact upon defense counsel's ability to conduct ex parte interviews of the plaintiff's treating physician. Although HIPAA was not primarily enacted by Congress to be a federal medical privacy act, the privacy aspect may be the most far-reaching and broadly impacting part of this legislation. In fact, the regulations promulgated by the Department of Health and Human Services (DHHS), not the legislation itself, are the source of nearly all the federal patient privacy protections now given to a patient's health information. These regulations set forth a comprehensive scheme for the disclosure of patient health information, including the use of such information in a judicial proceeding. The impact of these regulations is extremely far-reaching because the regulations are implicated any time evidence of a plaintiff's medical condition is at issue, such that the regulations must be taken into account in both state and federal court proceedings. In the case of the defendant's counsel, the impact that these regulations have on the continued propriety of ex parte interviews is an important consideration. This Comment concludes that ex parte interviews are no longer a proper means of obtaining a plaintiff's health information from the treating physician, and the failure to discontinue the use of ex parte interviews may result in both criminal and civil sanctions. Part I will briefly discuss how states have addressed the appropriateness of ex parte interviews, and will also discuss some of the methods that the states have used to protect a patient's privacy. Part II will then analyze HIPAA and its supporting regulations, specifically as they relate to ex parte interviews, as well as discuss the few cases that have addressed this issue. Part III will discuss remedies available to a plaintiff for a violation of HIPAA, as well as examine HIPAA's impact on the law of privileges.