Can a doctor who has been sued insist on a private meeting with the Plaintiff's physican?
There has been significant disagreement among authorities in Michigan over the interaction of the HIPAA privacy regulations and Michigan's statutory waiver of the physician-patient privilege that occurs when an injury victim files a civil action. Insurers for doctors, in particular, have been very aggressive in seeking the right to conduct private interviews with the other physicians who treated an alleged victim of malpractice.
In Holman v. Rasak, the Defendant doctor's attorneys sought copies of the decedent's medical records and also a court order allowing them to interview the other treating physicians, without allowing the Plaintiff's attorneys to attend or participate. The decedent's records were turned over to the attorneys without objection, but the Estate's attorneys refused to execute authorizations granting the doctor's attorneys the right to conduct private "ex parte" discussions with the other doctors without notice. The Circuit Court agreed with the stance taken by the Estate's attorneys and denied the insurer's attorneys the unrestricted order they had requested. The appellate court reversed the trial court's decision, holding that the lower court had the authority to grant ex parte interviews, provided they were conducted in accordance with an advance order that complied with 45 CFR 164.512(1)(e) and which constituted a proper "qualified protective order".