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| Grewal Law, PLLC

Most of us would consider our personal health information to be just that – personal. It is important to our health to be frank and open with our doctors about conditions that may seem embarrassing or private in nature. This confidentiality is one of the key features of the doctor-patient relationship. Indeed, patient privacy is so highly valued that federal laws are in place to protect it.

The Health Insurance Portability and Accountability Act, or HIPAA, is designed to protect individually identifiable health information from falling into the wrong hands. In general, the law requires providers to notify a patient and obtain his or her consent before releasing any private health information. However, this federal protection of personal health records sometimes conflicts with Michigan state laws governing personal injury actions.

Under Michigan law, personal injury plaintiffs waive doctor-patient privilege as to any other doctor who treated the patient for the condition that is the subject of a lawsuit. For example, a motorcyclist whose leg is broken due to the negligence of another motorist must allow the defendant to have access to medical records pertaining to that injury. The state law allows people to adequately defend themselves in court and can frequently lead to a speedy resolution of the case without the need for a trial.

HIPAA contemplates the advantages of disclosure in the context of litigation, but it puts stringent limitations on how the disclosures must be made. In Michigan, one of the key points of contention was whether or not defense attorneys should be allowed to conduct oral interviews of the plaintiff’s treating physicians without the plaintiff’s attorney present. These communications, known among lawyers as ex-parte interviews, are of particular concern because crafty defense attorneys might elicit information beyond what HIPAA permits. Written disclosures, on the other hand, can be more carefully drafted to protect a patient’s privacy while still providing adequate information to the defendant.

In November 2008, a three-member panel of the Michigan Court of Appeals decided Holman v. Rasak, in which the Court held that defense attorneys may seek court orders permitting ex-parte oral interviews with a plaintiff’s treating physicians. This decision is widely regarded as a victory for defense lawyers and a serious blow to patient privacy. Fortunately, the Michigan Supreme Court is now reviewing the case, and oral arguments were heard on November 3rd.

Hopefully Michigan’s new Supreme Court will continue its trend of protecting consumers, patients, and the injured victims of negligence. There are numerous other avenues to obtain relevant information from treating physicians. Ex-parte interviews simply pose too great a risk to patient confidentiality, which in turn could discourage patients from sharing important health information with their doctors.

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