Dissecting the Latest Pronouncements on Ex parte Physician Interviews

There is a recurring battle playing out in trial courts across the country in medical negligence cases. On one side, defendants purport to have the right to interview plaintiffs' treating physicians through ex parte interviews or informal meetings, where plaintiffs and their counsel are excluded from participation. On the other side, plaintiffs struggle to prohibit such interviews and meetings, consistently citing “The Health Insurance Portability and Accountability Act,” otherwise known by its acronym, “HIPAA.” Most recently, a Missouri appellate court, followed by a federal district court last month, each squarely decided the issue. They reached opposite conclusions, however. Now, the Supreme Court of Michigan is poised to decide the issue, which will mark the highest decision yet on HIPAA's application to ex parte physician interviews.