Thomas v. 1156729 Ontario Inc.

979 F.Supp.2d 780

Antoinne D. THOMAS, Plaintiff,

v.1156729 ONTARIO INC. a/k/a CB Deliveries and Danny Myslik, Defendants.

Case No. 13–12283.

United States District Court,

E.D. Michigan,

Southern Division.

Oct. 28, 2013.

Recognized as Preempted

M.C.L.A. § 600.2157.

David E. Christensen, Gursten, Koltonow, Gursten, Christensen & Raitt, P.C., Farmington Hills, MI, for Plaintiff.

Mark E. Shreve, Garan Lucow, Troy, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTION FOR A QUALIFIED PROTECTIVE ORDER

DAVID M. LAWSON, District Judge.

Before the Court is a motion by the defendants for a qualified protective order to permit them to obtain the plaintiff's medical records and conduct ex parte interviews of his treating medical providers. The plaintiff objects to the request for ex parte interviews on the ground that formal discovery procedures—that is, depositions—are available to permit the defendants to gather the information they need and are better suited to protect the plaintiff's privacy rights. The issues raised by the motion have arisen in other personal injury cases in this district, in which the Court has addressed both Congress's mandate that a person's medical information be kept confidential under the Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d et seq., and the defendants' interests in access to medical witnesses that may have information that is necessary to defend the lawsuit.

Background

This is a personal injury case arising from an automobile accident in Detroit. Plaintiff Antoinne Thomas alleges that defendantDanny Myslik negligently injured him while driving a semi-truck for his employer, 1156729 Ontario Inc. Thomas alleges that he suffered a traumatic brain injury and injuries to his neck and back. The plaintiff alleges that the defendants are citizens of Canada and he has invoked the Court's alienage jurisdiction under the diversity statute. See28 U.S.C. § 1332(a)(2). The claim is based on Michigan's no-fault insurance act. SeeMich. Comp. Laws § 500.3135.

Medical privilege under state law

Michigan law recognizes a privilege that requires a physician to refrain from “disclos[ing] any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician....” Mich. Comp. Laws § 600.2157. That privilege applies in this case because for the plaintiff's claim, “state law supplies the rule of decision.” Fed.R.Evid. 501. That privilege, however, is waived if “the patient brings an action against any defendant to recover for any personal injuries, ... and the patient produces a physician as a witness in the patient's own behalf who has treated the patient for the injury....” Mich. Comp. Laws § 600.2157. The waiver extends to “physician[s] who ha[ve] treated the patient for the injuries, disease, or condition.” Ibid.; see also Domako v. Rowe, 438 Mich. 347, 353, 475 N.W.2d 30, 32 (1991).

Michigan courts have held that defense counsel may conduct ex parte interviews with a plaintiff's treating physician under state discovery rules after the plaintiff has waived the physician-patient privilege, either by failing to assert it timely or by filing a lawsuit and alleging personal injuries. Domako, 438 Mich. at 362, 475 N.W.2d at 36;see also Holman v. Rasak, 486 Mich. 429, 437, 785 N.W.2d 98, 102 (2010). But those cases do not settle the question here; the overarching authority governing a patient's right to privacy of his or her medical records is HIPAA, a federal statute.

Privacy of medical information under federal law

HIPAA ensures the security and privacy of health information. Wade v. Vabnick–Wener, 922 F.Supp.2d 679, 687 (W.D.Tenn.2010). The enactment of HIPAA ushered in a “strong federal policy in favor of protecting the privacy of patient medical records.” Law v. Zuckerman, 307 F.Supp.2d 705, 711 (D.Md.2004). The regulations restrict the ability of health care providers to disclose a patient's medical information without the patient's consent. Id. at 710–711.

HIPAA contains an express provision preempting state law that is “contrary to” its requirements. 42 U.S.C. § 1320d–7(a)(1); see also45 C.F.R. § 160.203. State law is contrary to HIPAA if (1) it is impossible to comply with both state and federal requirements; or (2) state law is an obstacle to accomplishing the law's goals and objectives. 45 C.F.R. § 160.202. On the other hand, HIPAA does not preempt a state law that is “more stringent” than the requirements under HIPAA. 45 C.F.R. § 160.203(b). A state law is more stringent than HIPAA if the state law increases the privacy protections afforded, provides the patient access to more information than HIPAA requires, increases an individual's right to access or amend health information, or restricts the use or disclosure of information that HIPAA would otherwise permit. 45 C.F.R. § 160.202.

Preemption

Michigan courts have held that HIPAA does not preempt state law because it is possible to comply with both state law and HIPAA, and state law does not undermine HIPAA's objectives. Holman, 486 Mich. at 441, 785 N.W.2d at 105;see also Isidore Steiner, DPM, PC v. Bonanni, 292 Mich.App. 265, 274, 807 N.W.2d 902, 908 (2011) (holding that HIPAA does not preempt Michigan law because Michigan law is more stringent than HIPAA in prohibiting disclosure of private medical information). That is plainly incorrect. “Unlike Michigan law, HIPAA does not allow for automatic waiver of the physician-patient privilege upon the filing of a lawsuit, therefore Michigan law is not ‘more stringent,’ and is superceded by HIPAA.” Congress v. Tillman, No. 09–10419, 2009 WL 1738511, at *1 (E.D.Mich. June 16, 2009) (citing Law v. Zuckerman, 307 F.Supp.2d 705, 711 (D.Md.2004)); see also Soto v. ABX Air, Inc., No. 07–11035, 2010 WL 4539454, at *1 (E.D.Mich. Nov. 3, 2010) (“HIPAA supersedes Michigan law to the extent its protections are more stringent than those provided by state law.”); Palazzolo v. Mann, No. 09–10043, 2009 WL 728527, at *2 (E.D.Mich. Mar. 19, 2009) (“Clearly, HIPAA supercedes Michigan law to the extent that its protections and requirements are more stringent than those provided by state law.”). Moreover, unlike Michigan law, HIPPA does not permit unfettered access to a patient's medical providers to conduct ex parte interviews just because a lawsuit has been filed.

Disclosures permitted under HIPAA

Nonetheless, HIPAA and its implementing regulations include a number of exceptions to the rule prohibiting disclosure of protected health information without the patient's consent. 45 C.F.R. § 164.512. One of those exceptions relates to the disclosure of information for purposes of judicial and administrative proceedings. The regulation states:

A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or

(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:

(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or

(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section....

45 C.F.R. § 164.512(e)(1). HIPAA, therefore, permits a physician to disclose protected health information to comply with a court order, subpoena, discovery request, or other lawful process. But a physician may disclose protected health information in response to a subpoena, discovery request, or other lawful process only if (1) the patient has been given notice of the request for information; or (2) the physician receives “satisfactory assurance” from the party seeking the information that reasonable efforts have been made to secure a qualified protective order. The point of requiring notice, presumably, is to give the patient an opportunity to challenge the subpoena or other request for information. The requirement of a qualified protective order likewise contemplates an adversarial opportunity. The regulations plainly contemplate that disclosure of protected information will be subject to judicial supervision.

Ex parte interviews

As other courts have observed, HIPAA neither prohibits nor permits defendants to conduct ex parte interviews with physicians. Bayne v. Provost, 359 F.Supp.2d 234, 240 (N.D.N.Y.2005) (“Absent within the four corners of the relevant rules and regulations and the enabling statute is any mention of an ex parte interview of a health provider.”); Croskey v. BMW of N. Am., No. 02–73747, 2005 WL 4704767, at *4 (E.D.Mich. Nov. 10, 2005) (“The problem with [HIPAA] is that it does not explicitly mention ex parte interviews.”). However, that has not prevented courts from issuing qualified protective orders that allow such interviews, as long as measures are put in place to allow judicial supervision adequate to ensure that HIPAA's goals are achieved. Croskey, 2005 WL 4704767, at *2;Congress, 2009 WL 1738511, at *2 (holding that “defendants may conduct an ex parte oral interview with [plaintiff's] physician if a qualified protective order, consistent with 45 C.F.R. § 164.512(e)(1), is first put in place.”) (quoting Holman v. Rasak, 281 Mich.App. 507, 513, 761 N.W.2d 391, 395 (2008));Pa...