We have another guest post today, from Reed Smith‘s own Erica Yen.  This one is about a recent, interesting decision concerning the interaction between the Health Insurance Portability and Accountability Act (“HIPAA”) and the common law – with a good result this time.  As always, our guest bloggers are 100% responsible for their posts, and Erica deserves all the credit (and any blame) for what follows.

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As noted in our post last month, the fact that HIPAA does not provide for a private right of action has not stopped some state courts from allowing negligence claims using HIPAA to define a standard of care. That post discussed the Connecticut Supreme Court’s questionable creation of a new tort of “unauthorized disclosure of confidential medical information” by a healthcare provider.

When the plaintiff in the recent case of Haywood v. Novartis Pharmaceuticals Corp., No. 2:15-CV-373, 2018 WL 437562 (N.D. Ill. Jan. 16, 2018), first filed her complaint in state court, she probably was hoping that the same expansive reasoning used in the Connecticut case would extend to the alleged disclosure by a pharmaceutical company of her private medical information to her employer. In federal court, however, her unusual negligence claims were not allowed to proceed, under HIPAA or otherwise.

In Haywood, the plaintiff had applied for a co-pay assistance program administered by the defendant to help offset the cost of purchasing that defendant’s prescription medications. Id. at *1. Despite an alleged written request that no information be sent to her workplace, the defendant allegedly faxed information that became available to the plaintiff’s co-workers. The information allegedly included her social security number, date of birth, income, Medicare number, disease, treatment, and medical providers. Id. The relevant (amended) complaint alleged negligence and negligent training and supervision in violating duties owed to her under (1) the defendant’s Privacy Notice and Privacy Statement, (2) Indiana state law, and (3) HIPAA. Id. She also claimed punitive damages based on supposed reckless indifference by disclosing the information against her written request not to do so. Id.

The end result? The court held that the defendant drug manufacturer did not owe the plaintiff any duty for the following reasons, and the plaintiff was not entitled to any punitive damages.

First, the court was not persuaded by the plaintiff’s argument that the defendant’s Privacy Notice and Privacy Statement, posted on its website, created a duty of privacy to her as a customer. Id. at *4. The privacy policies posted online concerned dissemination of information to business partners who were prohibited from using customers’ personal data for marketing purposes. Dissemination to plaintiff’s place of employment had nothing to do with third-party marketing. The defendant’s privacy policies did not set forth any obligations with respect to general non-disclosure, and the court found that the plaintiff’s unilateral request not to send information to her workplace could not, by itself, create a legal duty. Id.

Second, the section of the Indiana Code the plaintiff cited, Ind. C. §25-26-13-15(b), failed to create a duty either. While facially applicable to the defendant, as the specific statute applied to “any ‘person’ with patient information,” the court held that as a whole it regulated “Pharmacists, Pharmacies, and Drug Stores.” The defendant was not any of those, nor did the statute purport to regulate the manufacture of pharmaceuticals or the administration of co-payment assistance programs. That the defendant was a “provider of pharmaceuticals” was not enough to bring it within the purview of a statute addressed to other types of entities and conduct. Therefore, no statutory duty could be owed to the plaintiff. Id.

Third, the court dismissed the plaintiff’s attempt to allege a negligence per se theory that the defendant violated HIPAA standards. Id. at *7. Given that HIPAA does not provide for a private right of action and enforcement was intended to be solely under the authority of the Department of Health and Human Services, allowing state law claims that rely on HIPAA would allow plaintiffs to sidestep those enforcement mechanisms. Id. That sounds a lot like how the FDCA works.

Lastly, the court noted that there was no precedent in the jurisdiction to suggest that a pharmaceutical company has a general duty to safeguard an individual’s personal information from disclosure. Id. at *8. The court could have stopped there but went further to explain the reasons why it concluded a duty should not be imposed at common law, after examining (1) the relationship between the parties, (2) the reasonable foreseeability of harm, and (3) public policy concerns:

    • The relationship between a potential customer and co-pay assistance company, as in the case here, was not similar to the relationship between a pharmacist and consumer “mainly because the direct contact, expertise, reliance, and counseling aspects of the relationship are wholly lacking.” Id.

 

  • Given that much of an employee’s personal information was likely already available to his or her employer anyway and was unlikely to cause adverse consequences, the foreseeability of legally actionable harm was minimal. Id. at *8-9.
  • Given the growing amount of sensitive personal information generally being made available to third parties in today’s digital society, even if a pharmaceutical company could theoretically bear the liability from inadvertent disclosures, “[a]ssigning significant moral blame to a pharmaceutical corporation in this situation is disproportionate to the actual acts performed (i.e., negligently disclosing information to an employer during a routine application process) . . . Imposing a duty to safeguard information from all possible disclosures upon any party or entity who happens to be in possession of the personal information of another would expand liability in a way that has the potential to stifle the collection of data and the routine processing of information.” Id. at *9. A Seventh Circuit decision analyzing the Indiana data disclosure statute had found no private right of action against a database owner for negligently disclosing information; rather the database owner only had to disclose the breach to customers and let the state attorney general handle enforcement. Id. (citing Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 636-637 (7th Cir. 2007)).

Based on this reasoning, and exercising appropriate restraint under the Erie doctrine, Haywood concluded that the plaintiff failed to state any viable claim for negligence, negligent training and supervision, or punitive damages. Notwithstanding the importance of protecting health information, and even assuming the defendant’s handling of the plaintiff’s information was done in error, the court acted reasonably in not opening the gates to the kind of expansive duty and liability the plaintiff sought. The unsatisfied plaintiff filed an appeal to the Seventh Circuit just a few weeks ago. See Case No. 18-1328 (filed February 24, 2018). It would be surprising if the Seventh Circuit did not agree with the district court’s analysis and conclusion.

We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background.  Onscreen was a popular cable reality franchise involving wealthy denizens of a gated community in Southern California.  The heated argument du jour involved one resident’s decision to speak privately to another about a third, during which exchange B-to-C confidences may or may not have been disclosed to A.  The original confider was adamant that the information was hers alone to control, insisting that the private conversation should not have occurred.  Much perfectly-coiffed shrieking ensued.

We were reminded of this spectacle as we read the decision of the Kentucky Supreme Court in Caldwell v. Chauvin, — S.W. 3d. –, 2015 WL 3653447 (Ky. June 11, 2015).  In Caldwell,  the underlying medical malpractice action involved plaintiff’s claim that her spinal surgery was unnecessary and negligently performed and caused her permanent injuries.  In the course of discovery, defendant moved for a qualified protective order permitting him to make ex parte contacts with plaintiff’s healthcare providers.   The court entered an order permitting such contacts but expressly declining to authorize disclosure of plaintiff’s health information. The order “also explicitly stated it was [not] requiring any physician to speak with [defendant] . . . , noting [that] the treating physicians [were] free to accept of decline counsel’s request as they [saw] fit.”  Id. at *2 (internal punctuation omitted).  Plaintiff sought a writ of prohibition from the Court of Appeals.  The Court of Appeals declined to issue the writ, holding: 1) no Kentucky law prohibits the trial court from authorizing ex parte communications with non-expert treating physicians; and 2) the order did not violate any privacy right plaintiff might have because it did not compel the disclosure of any information.  Id.

Continue Reading Ask But Don’t Tell: Kentucky Allows Defendant to Seek Ex Parte Interviews of Plaintiff’s Treating Physicians

For over seven years, we’ve been following the odd little romance that the other side of the “v.” has been having with purported federal preemption of state litigation practices that allow our side to conduct voluntary, informal interviews with treating physicians – since our “HIPAA Does Not Preempt State Litigation Practice” post back in DDLaw’s formative Beck/Herrmann days. To put our position in one sentence, since HIPAA has an explicit exception for litigation (45 C.F.R. §164.512(e)), HIPAA has no preemptive effect on state law that accords both sides the same right to talk to treating physicians informally.

We cheered when the New York Court of Appeals got it right and hissed when a Missouri intermediate appellate court got it wrong.  Well, we’re cheering again, and we like that better.

Last Friday the Eleventh Circuit decided Murphy v. Dulay, ___ F.3d ___, 2014 WL 5072710 (11th Cir. Oct 10, 2014), and rejected a HIPAA challenge to a Florida statute allowing – indeed effectively routinizing (if the doctor is willing) – informal treater interviews.  Murphy isn’t going to help our clients directly, since the statute in question applies only to medical malpractice cases, and general Florida law, according to our 50-state survey of informal interview law is adverse.  Still, precedent is precedent, and a federal appellate court rejecting bogus HIPAA preemption arguments should be rather persuasive, as well as fun to blog about.

Continue Reading No, HIPAA Does Not Preempt Informal Treater Interviews

We expanded our practice into data privacy and security out of practical necessity.  Expectations surrounding privacy of personal information are evolving, and the laws that regulate data privacy change every day, generally to expand protection for private information.  Another thing that has changed is that we used to say that drug companies and medical device manufacturers are typically not HIPAA-covered entities.  While this still may be generally true, we have come to find that many drug and medical device companies, if not HIPAA-covered entities themselves, have subsidiaries that are.  Regardless, whether HIPAA covered or not, drug and medical device manufacturers increasingly have possession of private personal health information for the patients who are treated with their products.

Our collective interest in data privacy led us to give you our gloss on Regents of the University of California v. Superior Court, 220 Cal. App. 4th 549 (2013), which involved claims under California’s Confidentiality of Medical Information Act.  Unlike HIPAA, the CMIA permits a private right of action and allows for the recovery of substantial statutory damages.  The case involved the theft of a hard drive containing medical records, and the California Court of Appeal held that a plaintiff cannot sue where private information was lost, but there is no evidence (or even an allegation) that anyone ever viewed it.  The vast majority of data privacy cases, all of them class actions, do not and cannot allege any actual harm to the plaintiffs.  The Regents case was no exception, and the California court came absolutely to the correct conclusion:  No harm, no foul.

The Court of Appeal has now followed that opinion with another that got it right, but for slightly different reasons that should help put an end to this kind of wasteful litigation. In Sutter Health v. Superior Court, No. C072591, 2014 WL 3589699 (Cal. Ct. App. July 21, 2014), a thief again stole computer media that contained medical records. As in Regents, no one knows what happened to the information:  For all anyone knows, the thief took the stolen computer apart, wiped it clean, and sold it in pieces.  Maybe he is using the hard drive as a door stop.  Nobody knows, and the plaintiffs could not and did not allege that anyone ever viewed their medical information.

The earlier Regents opinion had reasoned that because no one ever viewed the medical information, no “release” of confidential information had occurred, as required to state a CMIA claim.  A conclusion with which we wholeheartedly agree.  The Court of Appeal in Sutter Health went one step further and held that there was no alleged “breach” of confidential information in the first place.  Sure, confidential information changed hands. But the harm against which the statute protects is the breach of confidentiality.  A mere change of possession does not amount to a breach and thus does not invoke the statute’s remedies.  As the court observed,

No breach of confidentiality takes place until an unauthorized person views the medical information.  It is the medical information, not the physical record (whether in electronic, paper, or other form), that is the focus of the Confidentiality Act.  While there is certainly a connection between the information and its physical form, possession of the physical form without actually viewing the information does not offend the basic public policy advanced by the Confidentiality Act. . . . This change of possession increased the risk of a confidentiality breach.  But the Confidentiality Act does not provide for liability for increasing the risk of a confidentiality breach.

Sutter, at *6.  We like this statement because it makes so much sense.  It is also the counter statement to the absurdity that otherwise would prevail:  If the mere change of possession, and nothing more, were sufficient to state a claim, plaintiffs could force expensive litigation and potentially recover statutory damages when nothing actually happened to them.  As the court said, “We cannot interpret a statute to require such an unintended result.”  Id at *7.

Unintended?  We suppose we agree with that, but other words come to mind.  Such as unfair.  Or unjust. Or “you gotta be kidding me.”  Choose your own term, and bear in mind that data privacy issues will not go away anytime soon.  The CMIA is not the cash cow that the plaintiffs’ bar thought it might be, but they will keep trying to find something else.

Data privacy is a hot topic. We regularly speak on data privacy at Reed Smith’s annual California continuing legal education day, and it takes hours to prepare because the landscape changes so rapidly. The law changes day-by-day, both legislatively and in our courts, and entire emerging industries (e.g., the “apps” industry) are organized around the collection and monetization of personal information disclosing what we do, when we do it, for how long, and where we are located. The very definition of “privacy” is now robustly debated, which is a significant change from the days when everyone knew that “private” information meant name, date of birth, social security number, account numbers, or some combination thereof. Today if you asked 25 privacy professionals to define “private” information, you might get 25 answers, and some would say “everything.”

When we expanded our drug and medical device practice into the data privacy realm a few years ago (along with the co-author of this post, Reed Smith’s Joshua Marker, an outstanding privacy lawyer and active blogger in his own right), we found that the healthcare industry was, for the most part, ahead of the game because the rules were relatively clear. Everyone agreed that personal health information was private, and there was HIPAA, the ubiquitous federal law that has regulated the security and privacy of personal health information since enacted in 1996. Drug and medical device companies typically are not HIPAA-covered entities, but they often have possession of personal health information in connection with patients who use their products, and our experience is that our clients and the lawyers who represent them take patient privacy very seriously.

One thing that has not changed is that there is no private right of action under HIPAA. That does not mean, of course, that plaintiffs have not tried to sue over breaches of security involving their private information. A handful of cases have permitted state law claims supported in part by alleged HIPAA violations, pleaded as claims like “negligence per se.” And there are numerous state laws regulating medical information that have garnered more attention as data privacy has become front-page news.

Continue Reading Privacy of Medical Information: No Harm, No Foul, No Private Right of Action

Have you ever noticed how you notice the same thing everywhere when you’re thinking about it? If you’re contemplating purchase of a station wagon, you see station wagons all over the place (sort of like the parking lot of a 1970’s Bobby Sherman concert).

We’ve been thinking about ex parte interviews with treating doctors. We’re working on them for paying clients. We blogged about a recent case here. And what do we get?  A reader sent us a November 2009 unpublished decision from a Missouri appellate court, State ex rel. Proctor v. Messina, 2009 WL 3735919 (Mo. App. W.D. Nov. 10, 2009). Sorry to say it, but we like this Missouri opinion even less than we like station wagons.

Before we get to the grisly details, let’s review the basics about ex parte interviews of doctors:

  • We like them. What treating doctors say is terribly important. Some jurors toss out the competing expert opinions and trust the treaters. The treaters developed their opinions in the course of treating a real human being and they made important – maybe even life-and-death – decisions. Their patient’s health, and their own reputation (and malpractice exposure) was on the line. It’s music to our ears when treaters say that the plaintiff needed the drug, the drug helped the plaintiff, the drug did not hurt the plaintiff, and, knowing what the doctor knows today, the doctor would still prescribe that drug to plaintiff.
  • We really don’t like an unlevel playing field. It’s a huge litigation advantage if the plaintiff’s lawyers can talk to the doctors before depositions but the defense lawyers cannot. It’s especially vexing if the plaintiff’s lawyer is spending time with the doctor saying things like, “My client is not suing you – yet. And he doesn’t want to. Etc”. And that “Etc” is big. We’re not saying anybody is doing anything unethical. But there’s some pretty aggressive sausage-making out there. Or boudin. Or hot links. (It all depends on where the plaintiffs’ lawyers call home.) Further, plaintiffs’ lawyers like to trot out internal company “hot docs” or call notes in an effort to anger the doctors and enlist them as oath-helpers. That’s why the recent In re Ortho Evra Products Liability Litigation, MDL No. 1742 (N.D. Ohio Jan 20, 2010) decision furnishes some relief. It tells plaintiff lawyers they can discuss only their patient’s condition with doctors; they cannot practice their closing argument in front of the poor treaters.
  • In terms of a level-playing field, we prefer both-sides-can-talk to neither-side-can-talk. It’s better if both sides can make an early assessment of the case. Also, as the first amendment honchos like to say, the best remedy for bad speech is more speech, not restrictions on speech.

The Proctor case locks in the unlevel playing field, and for all the wrong reasons. It ends up saying that HIPAA stops defense lawyers from talking with doctors, even about issues that the plaintiff has put fully in play in the litigation, and that such HIPAA rule is either consistent with Missouri law or, if it isn’t, it preempts it. It is a bad result that is badly reasoned.

To begin with, the Proctor court acknowledges that under existing Missouri precedent, Brandt v. Pelican, 856 S.W. 2d 658 (Mo. banc 1993) (Brandt I), and Brandt v. Med Defense Assocs.. 856 S.W. 2d 667 (Mo. banc. 1993) (Brandt II), “there was no statutory basis in Missouri for concluding that voluntary ex parte communications between defense counsel and plaintiffs counsel were prohibited.” Proctor, 2009 WL 3735919 at *7 (emphasis in original). No great revelation there; we said that much in our 50 state survey on ex parte communications.

 But then Proctor says that HIPAA changed everything because it prevents ex parte communications with doctors save for certain exceptions, none of which (according to the court) applies here. 

Well, now we know the court hasn’t read our blog, because we’ve already made a compelling argument that HIPAA does not preempt state litigation practice on ex parte communications with doctors. Missouri, which had been a safe, friendly place for ex parte communications with doctors should remain so. But alas.

The Proctor court first says preemption isn’t necessary, because Missouri law does not require ex parte contacts. Rather, it is silent. And HIPAA harmonizes perfectly nicely, thank you, with such silence. But even if there is any conflict, then HIPAA preempts. This despite the presumption against preemption. This despite the government’s clear statement that HIPAA was “not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue.” 65 Fed. Reg. 82462, 82530. The better reasoned opinions on this subject (from, for example, New Jersey and New York) have concluded that HIPAA does not preempt state discovery practices regarding informal treater interviews. See our discussion here.

Look, it’s pure double talk for the Proctor court to say it’s not really deciding preemption, but if it is, then it’s all for it. Existing Missouri law permitted ex parte communications. Now, courtesy of HIPAA, such communications are verboten. Sounds like preemption to us.

But we think the main problem with the Proctor decision is its crabbed reading of HIPAA’s exceptions. HIPAA permits disclosure “in the course of any judicial … proceeding” or “in response to an order of a court,” or “[i]n response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court.” 45 C.F.R. §164.512(e)(1)(i)(ii).

Under any ordinary understanding of the litigation process, or of plain English, an ex parte communication with potential witnesses could find a home in one of those exceptions. But the Proctor court says that a “judicial proceeding” is limited to proceedings where the court is actually present or where the court somehow empowered the proceeding to take place. So doctors can testify in court or be deposed.  That’s the court’s “plain English” reading of “proceeding” — the presumption against preemption, the Levine court’s supposed “cornerstone,” be damned. 

Of course it occurs to any half-bright litigator (and we hope we’re at least that) that the court can empower an ex parte communication by making some sort of order permitting it to happen, perhaps with the sort of limitations in Ortho Evra. And here is where we end up in Catch 22 or Through the Looking Glass. The Proctor court interprets Missouri precedent to preclude such an order. Under Brandt II, courts cannot order doctors to submit to such ex parte communications. We don’t have a problem with that. Doctors are busy, and if they don’t want to have a nice, informal chat, that’s their business. But the Proctor court interprets State ex rel. Woytus v. Ryan, 776 S.W. 2d 389 (Mo. banc 1989), to prevent courts from ordering plaintiffs to sign medical authorizations consenting to ex parte communications with treating physicians. According to the Proctor decision, “Woytus ‘shows a judicial philosophy that discourages ex parte conversations with plaintiff’s doctor.’” 2009 WL 3735919 at *7 (quoting Brandt I, 856 S.W. 2d at 661).

It is clear that such hostility to ex parte communications animates the Proctor opinion. But the one-sided result makes no sense. First, Brandt II correctly concluded that plaintiffs who had put their medical condition at issue had waived the physician’s testimonial privilege and duty of confidentiality on such issues. Second, if, as both the Woytus opinion and the Proctor concurring opinion say, ex parte contacts with doctors “could disintegrate” into discussions of the “physician’s professional reputation,” “the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physicians’ views” (Proctor, 2009 WL 3735919 at *14 (concurrence) (quoting Woytus, 776 S.W. 2d at 395)), all of that exists at least as much, and probably a whole lot more, when plaintiffs’ lawyers start bending the ears of their clients’ doctors. 

 
Here is where we are: the Proctor decision has changed Missouri law, and for no good reason. Until it is overturned, the smart move by a defense lawyer is probably to seek out an Ortho Evra-type order that at least makes a gesture in the direction of limiting plaintiff lawyers from preloading doctors.

Some of you may have noticed that we’ve criticized a couple of Missouri opinions lately. The Nuvaring MDL (which, by the way, did a much better job on ex parte doctor interviews) is in Missouri, and we’ve been lobbing unkind words at it. Let’s be clear: we’ve got nothing against Missouri. Cardinals baseball fans are the best. Truman was an admirable President. When we were kids, we were keen on the Pony Express. We hear that the Andy Williams show in Branson really rocks. And Missouri has the best state motto: Show Me. We just wish the courts there would start showing us some good law.

Arthur Parker ingested Upsher-Smith Laboratories’ drug amiodarone, developed pulmonary difficulties, and died. His widow brought a product liability action against Upsher Smith.

Lawyers for Upsher-Smith wanted to interview some of Parker’s treating physicians. Plaintiff opposed those ex parte interviews, saying that Nevada law prohibits the interviews and that waivers granted under HIPAA do not preempt Nevada’s physician-patient privilege. Parker v. Upsher-Smith Labs., No. 3:06-CV-0518-ECR (VPC), 2009 WL 418596 (D. Nev. Feb. 18, 2009).

At a hearing held on February 3, 2009, Magistrate Judge Valerie Cooke held that the defendant could engage in interviews and specifically authorized defendant’s counsel to interview six physicians. The court directed counsel to meet and confer as to the proper scope of those interviews. Id. at *1. The court also found that HIPAA “permits a physician to disclose a patient’s medical information once a patient has executed a valid authorization.” Id. at *2. Plaintiff’s counsel said that the HIPAA authorizations had expired, and he would not advise his client to execute new ones. The court ordered that defendant’s counsel could interview the treating physicians despite that refusal. Id.

We need a thesaurus to write our next sentence fragment:

So senseless as to be laughable: absurd, foolish, harebrained, idiotic, imbecilic, insane, lunatic, mad, nonsensical, preposterous, silly, softheaded, tomfool, unearthly, zany. Informal: cockeyed, crazy, loony, loopy. Slang: balmy, dippy, dopey, jerky, sappy, wacky.

On the very next day — February 4 — without giving notice to anyone, plaintiff’s counsel mailed letters to 20 of the treating physicians advising the physicians that, despite the court order, they were “free to decide whether or not you wish to meet privately with defense counsel. There is legal authority which provides that neither HIPAA-compliant authorizations nor a court order can force a healthcare professional to communicate with the attorneys.” Id.

It gets worse.

On that same day, co-counsel for plaintiff spoke to defense counsel, but failed to disclose that plaintiff’s counsel had mailed the letters.

Where’s that book?

Idiotic: asinine, batty, birdbrained, crazy, daffy, daft, dull, dumb, fatuous, foolhardy, foolish, harebrained, imbecile, imbecilic, inane, insane, lunatic, moronic, senseless, silly, squirrelly, thick-witted, unintelligent.

It gets worse.

On the next day — February 5 — plaintiff’s counsel filed with the court a document renewing her argument that ex parte interviews of the treating physicians were improper — but not mentioning the 20 letters that he had mailed the previous day!

Forget Roget’s. It’s time for Black’s Law Dictionary:

Sanctionable!

When a court starts to list the ways in which it can sanction lawyers, someone in the courtroom should be nervous. So when Magistrate Judge Cooke trotted through “inherent power” to sanction, “sanctions under Fed. R. Civ. P. 37(b)(2),” “sanctions under 28 U.S.C. Sec. 1927,” and “sanctions pursuant to Local Rule IA 4-1,” id. at *4-6, you could see the Grim Reaper taking his backswing.

The Reaper didn’t miss.

Judge Cooke found that plaintiff’s counsel could have objected to the court’s decision permitting the interviews to proceed or moved for reconsideration. But counsel could not engage in self-help: “If a lawyer disagrees with an order of the court, that lawyer does not have leave to disregard or circumvent that order; his or her recourse is to take appropriate steps to test the validity of that ruling pursuant to Local Rules of Practice and the Federal Rules of Civil Procedure.” Id. at *8.

The court found that plaintiff’s counsel sent the letters “for the improper purpose of influencing these witnesses not to cooperate with defendant’s counsel in ex parte interviews, and it was done to gain a tactical advantage; that is, to subvert the court’s order.” Id. Plaintiff’s counsel “acted recklessly and with an improper intention,” in “bad faith,” and “in violation of [Local Rule] IA 4-1.” Id. at *8-9.

The court thus ordered plaintiff’s counsel (“not the plaintiff”) to pay defendant’s costs incurred in connection with the sanctions motion, plus $4000 to the local Attorney Admission Fund. Id. at *9.

And the magistrate judge deferred ruling on additional sanctions, pending an appeal to the district court of the order permitting the ex parte interviews. If the district court affirms the order allowing those interviews, then the magistrate judge would “fashion remedial measures to undo the harm plaintiff’s counsel caused.” Id.

The whole situation is just, well —

Incredible: absurd, far-fetched, fishy, flimsy*, implausible, impossible, improbable, incogitable, inconceivable, insupposable, out of the question, outlandish, phony, preposterous, questionable, ridiculous, rings phony, suspect, thin*, unbelievable, unconvincing, unimaginable, unsubstantial, untenable, unthinkable.

Interesting new decision out of the Asbestos MDL the other day, In re Asbestos Products Liability Litigation (No. VI), 2009 WL 466381 (E.D. Pa. Feb. 25, 2009). The asbestos defendants largely defeated a motion to quash their subpoenae (“ae” is Latin for “s”) for documents from doctors who had purported to diagnose asbestos-related conditions in probably thousands of plaintiffs.

We see the same phenomenon in a number of the larger MDLs. The same doctors file virtually the same largely conclusory reports diagnosing whatever the relevant condition is in scads of plaintiffs. When these diagnoses are reviewed, 99% of them turn out to be questionable at best.

Well, the asbestos MDL defendants (or some of them) fought back, and subpoenaed these doctors’ “screening medical documents.” 2009 WL 466381, at *1. The doctors tried to hide behind HIPAA, the physician/patient privilege, and their supposed status as “consulting experts” exempt from discovery under F.R. Civ. P. 26(b)(4)(B).

Didn’t work.

First the court determined that, as an MDL judge, it had jurisdiction to rule on motions to quash subpoenae anywhere in the country. MDL junkies will like the discussion of MDL power versus F.R. Civ. P. 45. Bottom line, “[t]o hold that a court presiding over an MDL case could not enforce a motion to compel would hamper the ability of an MDL court to coordinate and consolidate pretrial proceedings.” 2009 WL 466381, at *2.

Then the fun begins. The assembly-line doctors tried to claim that the records of their screening tests were protected by the patient privacy provisions of HIPAA. That got shot down in flames. “Because [the subpoenaed doctors] did not provide physician services to plaintiffs, they are not covered entities under HIPAA and, therefore, HIPAA does not prevent enforcement of the subpoenas.” Id.

The physician/patient privilege failed for the same reason. These doctors were acting as litigation consultants, not real doctors:

[The doctor] was not consulted by the Plaintiffs in order to provide treatment. Rather, he was consulted by Plaintiffs to provide a diagnosis, which would be relied upon by the individual Plaintiffs to support a personal injury claim. Therefore, under the circumstances, no physician-patient privilege attached to the information obtained from Plaintiffs. . .during the screening examinations.

Id. Further, even if there had been a privilege, it was waived. “When a patient uses a physician’s diagnosis in litigation, the patient places the essence of this information at issue, effectively waiving physician-patient privilege.” Id. at *3 (multiple citations omitted).

Finally, the court refused to let doctors whose diagnoses were the only reason the plaintiffs could be in court evade discovery concerning that diagnosis by masquerading as “consulting experts” under Rule 26:

[T]he only evidence of the scope and nature of Plaintiffs’ injuries are the reports made by [the doctors] in the course of their screening examinations of Plaintiffs. These diagnostics constitute the Doctors’ opinion as to whether the Plaintiffs they examined were afflicted with an asbestos related disease or malignancy. Without the Doctors’ opinions, the diagnostic reports are meaningless. By producing and relying upon the opinion of the Doctors, the Plaintiffs have, de facto, designated the Doctors as expert witnesses in this case. Plaintiffs, having produced and relied upon the opinions of [the doctors] in this litigation, cannot now claim that [they] are non-testifying experts entitled to the consulting expert privilege.

Id. at *4. The court found In re Silica Products Liability Litigation, 398 F. Supp.2d 563(S.D. Tex. 2005) – that’s the case that exposed the silicosis diagnosis racket – to be directly on point.

So if there’s funny business happening with qualifying diagnoses in a mass tort, Asbestos provides a road map for going to the core of the problem and exposing the grounds for these diagnoses to the light of day (and to a Daubert motion, at the very least).

There are a couple of cautionary notes as to procedure: (1) only try for documents relevant to the plaintiffs in the litigation, 2009 WL 466381, at *4-5; (2) make sure you serve opposing counsel with subpoena at the same time as the targeted docs. Id. at *5. Beyond that, if defendants think that there’s dodgy diagnosing going on, they have the right to go to the source.

That’s something nice to know, although one might think it would go without saying.

As we said recently in another context, it might come as a shock to the other side, but mass tort defendants have the right to defend themselves.

We love it when courts agree with us. (And don’t say, “Because it happens so rarely.”)

We posted in February that HIPAA does not preempt state laws that allow defense counsel to speak informally (and without plaintiff’s counsel present) with treating physicians.

In August, we praised a Kentucky federal trial court for holding that defense counsel do have the right to conduct those informal interviews of treaters.

Kentucky’s good, but New York’s better!

(Please, please. We’re not insulting Kentucky here. It’s just that there are more people, and more drug companies, in New York than in Kentucky. The more you blog, the more you realize that people take offense at the smallest perceived slights.)

Anyway, today’s happy news is Arons v. Jutkowitz, __ N.E.2d __, 2007 WL 4163865 (N.Y. Nov. 27, 2007). In three cases, which were consolidated on appeal, plaintiffs named multiple health care providers as defendants in medical malpractice cases. Not suprisingly, in each case, counsel for certain defendants wanted to interview the treating physician who was really at the heart of the claim. Those defendants asked the plaintiffs to execute HIPAA-compliant authorizations that would permit the interviews. Plaintiffs refused. Defendants moved to compel execution of the authorizations. The trial courts granted the motions to compel, although all three imposed limitations on how counsel could conduct the interviews and what information obtained during the interview would have to be shared with plaintiff.

(How nice that the procedural history of all three of the consolidated cases followed the same path. Otherwise, just describing this decision would have been a bear.)

The Appellate Division reversed in the lead case of Arons, holding that defendants were “entitled only to disclosure via the discovery devices enumerated” in the state court rules, “which do not mention ex parte interviews.” Id. at 2.

Happily, the New York Courts of Appeals (which is the highest court in New York) in turn reversed the Appellate Division. The Court of Appeals had, in an earlier case, allowed opposing counsel to interview corporate employees — other than presumably high-ranking employees whose acts would bind, or be imputed to, the corporation as a whole — who had witnessed a workplace accident. The court had reasoned that barring informal interviews would increase the cost of fact-gathering (because informal interviews cost less than formal depositions) and hamstring efforts to learn information.

In a different case, the court had permitted opposing counsel to conduct an ex parte interview of even “a former corporate executive who had been an important participant in the events contested in the litigation as well as a member of [the plaintiff’s] ‘litigation team.'” Id. at 4. Opposing counsel had, in that case, appropriately cautioned the executive not to reveal privileged or confidential information, including, in particular, the plaintiff’s litigation strategy.

In Arons, the Court of Appeals extended those precedents to allow ex parte interviews of treating physicians: “We see no reason why a nonparty treating physician should be less available for an off-the-record interview than the corporate employees in Niesig or the former corporate executive in Siebert.” Id.

First, a medical malpractice plaintiff waives the physician-patient privilege by bringing a personal injury case that places his or her medical condition in issue. Second, although the discovery rules do not expressly authorize ex parte interviews, the rules don’t expressly forbid them, and lawyers have always conducted informal interviews of witnesses to investigate the facts of lawsuits. Third, informal interviews take less time than formal depositions, sparing the litigants expense and the physicians the distraction of attending lengthy depositions. Finally, the court assumed that the lawyers conducting the interviews would be honest: They would tell the physician what parties the lawyers represented and make clear that the interview was “voluntary and limited in scope to the particular medical condition at issue in the litigation.” Id. at 5.

But that’s not all.

The Court of Appeals analyzed HIPAA and its preemption provisions at length and rejected the plaintiffs’ preemption arguments. The court concluded that “there can be no conflict between New York law and HIPAA on the subject of ex parte interviews of treating physicians because HIPAA does not address this subject.” Id. at 8. HIPAA simply requires that a lawyer who wants to interview an adverse party’s treating physician must obtain a HIPAA-compliant authorization and issue a subpoena (or other appropriate discovery request) that provides any necessary notice to interested parties.

But that’s not all.

The trial courts in the appeals consolidated in Arons had imposed conditions on the ex parte interviews, requiring defense counsel to provide his adversary with certain materials obtained during the interview. The Court of Appeals saw nothing in its precedents or HIPAA that required these conditions and held that the conditions had been imposed improperly.

For defense counsel in drug or device product liability cases, this is all good news. Follow the appropriate procedures, make the appropriate disclosures, and you’ll have a chance (if the treater consents) to interview treating physicians outside the presence of plaintiff’s counsel.

A level playing field, at last.

(For a contrary — that is, plaintiff’s — take, click here.)

Prescribing doctors – in our business you have to love them. Almost all of the cases we handle are governed by the learned intermediary rule, meaning that there’s no duty to warn a patient directly, and all warnings about prescription medical products are directed to the prescribers. When the prescribing doctor says “I knew all that already,” or “I never read your warning but relied upon my experience instead,” we win. If the extra warning our clients supposedly should have given wouldn’t have changed how the prescriber treated his or her patient, there’s no causation. No causation = summary judgment.

Thus we really like to talk to the prescribers – as early in the case as possibly and as informally as possible – to find our just how defensible our cases really are. We also like to talk to them to prevent the various abusive tactics that plaintiffs’ counsel employ when they’re allowed sole and unrestricted access to prescribers except through depositions. These tactics have included threats to sue the prescriber for malpractice unless s/he gives favorable testimony for the plaintiff, payment of “expert fees” if s/he gives favorable testimony for the plaintiff, providing the prescriber with collections of one-sided “information” about the product, and inducing prescribers to sign form affidavits that they later disavow when deposed, among other things.

The plaintiffs’ bar is pretty smart. They know how valuable informal prescriber interviews are to defendants in personal injury cases. They have waged a fairly successful decade-long fight to prevent defense counsel from having equal access to these critical witnesses. Their latest tactic, however, is just plain wrong. In places where they have been unsuccessful in changing state-law practices, they now claim that state law allowing defense counsel to talk to prescribers informally is preempted by the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§1320-d, et seq. (“HIPAA”). That’s just not so. HIPPA always intended to leave state civil procedure to the states.

There’s simply no basis for preemption. HIPAA enacted to ensure the security of electronic health information while it was stored and when it was exchanged between entities health-care providers, insurers, and the like during routine business. It was not intended to restrict anything that occurred during litigation. HIPAA says so explicitly.

The problem is that HIPAA’s preemption clause is quite broad and easy to find, while the exceptions are less apparent. When these preemption arguments have been made in mass tort litigation – where defense counsel have the resources to rebut them – they have been rightly rejected. However, these same arguments have been pressed in “one-off” malpractice cases and the like where defense counsel are not so well prepared. In that situation, some courts have been deceived by what is a statutorily fatuous argument.

HIPAA is not a substitute for the physician-patient privilege; it created no federally enforced privilege of any sort. Northwestern Memoriall Hospital v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004). Nor does HIPAA create any private cause of action – so litigants aggrieved by purported HIPAA violations have no federal right to sue. Poli v. Mountain Valleys Health Centers, Inc., 2006 WL 83378, at *2 (E.D. Cal. Jan. 11, 2006); Runkle v. Gonzales, 391 F. Supp.2d 210, 237 (February 2, 2006 D.D.C. 2005); Bradford v. Semar, 2005 WL 1806344, at *3 (E.D. Mo. July 28, 2005); Gaul v. Hughes Pharmacy Services, Inc., 2005 WL 1491216, at *3 (N.D. Iowa Jun. 23, 2005); Rigaud v. Garofalo, 2005 WL 1030196, at *3 (E.D. Pa. May 2, 2005); Johnson v. Quander, 370 F.Supp.2d 79, 99-100 (D.D.C. 2005). Rather, HIPAA provides its own administrative remedies. See 145 C.F.R. §160.306.

The physician-patient privilege was “unknown to the common law,” and where created by statute “is subject to many exceptions and to waiver for many reasons.” Whalen v. Rose, 429 U.S.589, 602 n.28 (1977). Almost everywhere, once somebody files suit over some sort of medical condition, all privileges are waived as to that condition. Alcon v. Spicer, 113 P.3d 735, 740 (Colo. 2005); Henricksen v. State, 84 P.3d 38, 48-49 (Mont. 2004); Willoya v. State Dept. of Corrections, 53 P.3d 1115, 1124 n.38 (Alaska 2002); Laznovsky v. Laznovsky, 745 A.2d 1054, 1067 (Md. 2000); Doe v. Orangeburg County School Dist. No. 2, 518 S.E.2d 259, 261 n.7 (S.C. 1999); Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 63 (Mo. 1999); Marsh v. Wenzel, 732 So. 2d 985, 990 (Ala. 1998); Donovan v. Bowling, 706 A.2d 937, 940 (R.I. 1998); Maynard v. Hereen, 563 N.W.2d 830, 837 (S.D. 1997); Steinberg v. Jensen, 534 N.W.2d 361, 368 (Wis. 1995); Stigliano v. Connaught Laboratories, Inc., 658 A2d 715, 718 (N.J. 1995); Nelson v. United States, 649 A.2d 301, 308 (D.C. 1994); Carson v. Fine, 867 P.2d 610, 618 (Wash. 1994); Vredeveld v. Clark, 504 N.W.2d 292, 300 (Neb. 1993); Pearce v. Ollie, 826 P.2d 888, 903 (Idaho 1992); Owen v. Owen, 563 N.E.2d 605, 608; State v. Valley, 571 A.2d 579, 586 (Vt. 1989); Dillenbeck v. Hess, 536 N.E.2d 1126, 1135 (N.Y. 1989); Nelson v. Lewis, 534 A.2d 720, 722 (N.H. 1987); State v. Berry, 324 So. 2d 822, 827 (La. 1976); State v. Campbell, 500 P.2d 21, 33-34 (Kan. 1972); City & County of San Francisco v. Superior Court, 231 P.2d 26, 28 (Cal. 1951); Wright v. Wasudev, 1994 WL 642785 at *5 (Tenn. Ct. App. Nov. 16, 1994); Moses v. McWilliams, 549 A.2d 950, 956 (Pa. Super. 1988); Orr v. Sievert, 292 S.E.2d 548, 550 (Ga. App. 1982).

HIPAA doesn’t change any of this. It was not enacted to address how state-law litigation impacts upon state-law privileges. Rather HIPAA was primarily enacted to require the government to create national standards for the routine electronic transmission of health care information. See 42 U.S.C. §1320d-2; In re Diet Drug Litigation, 895 A.2d 493, 497 n.11 (N.J. Super. 2005) (“[t]he Act’s first objective was not to protect privacy”). Congress wanted to promote the efficiencies that came with increased use of electronic data management technology in the medical area while preserving patient privacy. As a consequence, Congress mandate the adoption of federal privacy protections for individual health information. See Pub.L. 104-191 §264(a, c) (uncodified).

The administrative response was the so-called HIPAA Privacy Rule (“Privacy Rule”), effective April 14, 2003. 68 Fed. Reg. 8334 (Feb. 20, 2003). As a general proposition, the Privacy Rule requires covered entities, (health care providers, health plans and health care clearinghouses) to follow specified procedures to prevent improper or inappropriate disclosure of a patient’s individually identifiable health information. There are exceptions to these procedures – and one of these exceptions concerns litigation.

The HIPAA Privacy Rule does not confer federal privacy rights on state-law personal injury plaintiffs. Instead health care providers “may disclose protected health information in the course of any judicial. . .proceeding.” 45 C.F.R. §164.512(e). This regulation states, in pertinent part:

(e) Standard: Disclosures for judicial. . .proceedings.(1) Permitted disclosures. A covered entity may disclose protected health
information in the course of any judicial. . .proceeding
:. . .(i) In response to an order of a court. . .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. . .if:(A) The covered entity receives satisfactory assurance. . .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. . .(iii) . . .[A] covered entity receives satisfactory assurances. . .if the covered entity receives from such party a written statement. . .that:(A) The party requesting such information has made a good faith attempt to provide written notice to the individual. . .(B) The notice included sufficient information about the litigation. . .to permit the individual to raise an objection to the court. . ., and. . .(1) No objections were filed;or(2) All objections filed by the individual have been resolved by the court…(Emphasis added).

That’s the only protection HIPAA provides in the litigation context – any “lawful process that is not accompanied by an order of a court” simply requires “notice” and “satisfactory assurance” prior to production of individual medical information Id. §164.512(e)(ii)(A). Whatever state-law litigation procedure that was legal before HIPAA remains legal afterwards. Thus the governing federal regulation under HIPAA neither prohibits informal physician interviews nor requires them – and the same is true as to any other form of litigation-related information gathering permitted by state law. The regulation simply provides for resolution of “objections. . .by the court.” Id. §164.512(e)(iii)(C)(2).In light of the applicable HIPAA regulation, a claim that the Act preempts state civil practice makes no sense. Nothing in HIPAA purports to prohibit any method of gathering personal medical information about a personal injury plaintiff in the context of litigation initiated by that plaintiff. To the contrary, the language of §164.512(e) demonstrates that the HIPAA Privacy Rule contemplated and specifically addressed the issue of discovery in civil litigation – and preserved state law practice, whatever that practice might be. See E.E.O.C. v. Boston Mkt. Corp., 2004 WL 3327264, at *5 (E.D.N.Y. Dec. 16, 2004) (HIPAA “does not expressly prohibit ex parte communications with health providers for an adverse party, but neither does it authorize such communications”; declining to find preemption).In promulgating the Privacy Rule, the government confirmed that HIPAA was not intended to interfere with litigation discovery as permitted by state law. The Final Rule promulgating the Rule directly addressed the issue of state litigation practice.

[T]he provisions in this paragraph are not intended to disrupt current practice whereby an individual who is a party to a proceeding and has put his or her medical condition at issue will not prevail without consenting to the production of his or her protected health information. In such cases, we presume that parties will have ample notice and an opportunity to object in the context of the proceeding in which the individual is a party.

65 Fed. Reg. 82462, 82530 (emphasis added). Where a plaintiff-patient has voluntarily placed his or her medical condition at issue by filing suit, informal physician interviews thus remain proper whenever allowed by state law.The Federal Register and the Final Rule confirm that the government took particular care to ensure that, in the context of civil litigation, health care providers such as treating physicians could continue to disclose patient-plaintiffs’ health care information as a matter of course. For this reason, in the litigation context, notice is “presumed” for purposes of §164.512(e)(ii) based upon “ample notice and the opportunity to object” in the lawsuit “in which the individual is a party.” See 65 Fed. Reg. 82462, 82530. Thus the government made clear that the HIPAA Privacy Rule was not intended to affect current state-law litigation practice in any way.
Because HIPAA does not even purport to reach state-law litigation practices, there is no real reason to reach preemption as such. But even if express HIPAA preemption is considered, the preemption claim fails because preemption under HIPAA is expressly limited to “contrary” state law.HIPAA contains an express preemption clause that limits preemption to situations involving direct conflict between the Act and state law. Any federal standard resulting from HIPAA’s implementation “shall supersede any contrary provision of State law.” 42 U.S.C. §1320d-7(a)(1) (emphasis added). A “contrary” state law is defined as one that would make it “impossible [for a covered entity] to comply with both the State and federal requirements,” or that would stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of [the Act].” 45 C.F.R. §160.202.Unless prohibited by statute, administrative agencies may delineate the preemptive scope of the statutes they administer. Medtronic, Inc. v. Lohr, 518 U.S. 470, 496 (1996). As already discussed, under HIPAA state practice concerning informal treater interviews is preserved in 45 C.F.R. §164.512(e), and HHS has explicitly stated its intention “not. . .to disrupt current practice” concerning “a party to a proceeding [who] has put his or her medical condition at issue.” 65 Fed. Reg. at 82530. That defeats any claim of statutory preemption because, compliance with both state law and the Privacy Rule is not impossible, nor do informal interviews stand as an obstacle to the accomplishment of HIPAA’s objectives. The Privacy Rule itself expressly carved out an exception to maintain the free flow of information in judicial settings.Congress provided three exceptions to the HIPAA’s conflict-based preemption clause – where the state law: (1) is designed to prevent fraud and abuse in insurance; (2) concerns controlled substances; or (3) more stringently protects patient privacy than HIPAA. See 42 U.S.C. §1320d-7(a)(1). The preemption claim raised against informal interviews is that they do not fall under these three exceptions. That puts the cart before the horse, because it assumes a conflict when in fact there is none – since preemption is expressly limited only to “contrary” state law. The exceptions become irrelevant because there is nothing “contrary” to state law allowing informal physician interviews. HIPAA simply doesn’t purport to restrict state-law litigation practice in personal injury litigation in any way.Even if some argument could be made that there was some sort of conflict, the “presumption against preemption” would apply to a preemption claim involving construction of an express preemption clause. See Our Post on “Heedless Use of Heeding Presumptions” of December 8, 2006. In construing a federal preemption clause, courts “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act.” Medtronic v. Lohr, 518 U.S. at 485. Well, physician/patient questions are squarely within the states’ historic powers. Not only is there is no federal physician/patient privilege. Whalen, supra, but even in federal litigation, privileges are governed by state law. Fed. R. Evid. 501. The presumption against preemption thus applies with full force in this case.The HIPAA preemption clause does not permit – let alone mandate – preemption here. On its face, §1320d-7 demands that state law be “contrary” to the Act. Since the Privacy Rule contains a specific exemption for litigation-related discovery, informal treater interviews permitted under state practice cannot possibly be contrary to the terms of HIPAA. “All that [the Privacy Rule] should be understood to do, therefore, is to create a procedure for obtaining authority to use medical records in litigation.” Northwestern Memorial Hospital, 362 F.3d at 925-25 (disapproving lower court preemption analysis). Accord Harris v. Whittington, 2007 WL 164031, at *2 (D. Kan. Jan. 19, 2007) (“plaintiff objects to the “ex parte” nature of interviews based on the enactment of HIPAA. . . . HIPAA rules and regulations contemplate the disclosure and use of medical information in a judicial proceeding”).Thus, in Hawes v. Golden, 2004 WL 2244448 (Ohio App. Sep. 22, 2004), appeal denied, 822 N.E.2d 811 (Ohio 2005), the appellate court disagreed with the contention that a state statute waiving the physician-patient privilege upon the filing of certain personal injury litigation was preempted by HIPAA. The exceptions in 45 C.F.R. §164.512(e), preserving state discovery procedures, precluded the existence of any preemptive “conflict”:

Whether [the state statute] is preempted by HIPAA depends on whether it is “contrary” to federal law. “Contrary” is defined. . .as the impossibility of complying with both state and federal requirements. In this case, it is not impossible for the medical provider/covered entity to comply with both federal and state law. Under state law, the patient/physician privilege is waived upon filing a wrongful death action such that medical evidence is discoverable from a medical provider/covered entity. . . . HIPAA likewise permits disclosure of medical evidence either pursuant to a court order, discovery request or subpoena. Consequently, there is no conflict.Appellant claims that HIPAA does not contain any provisions. . .regarding waiver of her decedent’s privacy rights. . .[but] does not, however, cite 45 C.F.R. §164.512(e), regarding judicial and administrative proceedings, discussed above, which clearly apply to this case. These provisions specifically authorize release of medical records pursuant to a court order, subpoena, or discovery request. This Court finds that these provisions permit discovery of medical evidence relevant to wrongful death cases. They are not superseded or preempted by HIPAA.

Hawes, 2004 WL 2244448, at *2-3 ¶¶12-13 (citations omitted).The HIPAA preemption issue has also been extensively litigated in New Jersey. There, the courts have concluded that “[n]owhere in HIPAA does the issue of ex parte interviews with treating physicians, as an informal discovery device, come into view. The court is aware of no intent by Congress to displace any specific state court rule, statute or case law on ex parte interviews.” Smith v. American Home Products Corp., 855 A.2d 608, 622 (N.J. Super. 2003). “HIPAA, by its own terms, does not exclusively dominate the field of protecting individual privacy interests in health information.” Diet Drug, 895 A.2d at 502 n.26. Concerning judicial proceedings generally:

As for this state’s informal discovery practices, congressional intent seems not to intrude on New Jersey’s general authority over its judicial and administrative proceedings. HIPAA. . .allows a covered entity to disclose protected health information without written authorization of the patient or an opportunity for the patient to agree or object to the disclosure during judicial proceedings under certain circumstances such as a court order, discovery request, or subpoena.

Smith, 855 A.2d at 622. Thus “[b]ecause informal discovery is not expressly addressed under HIPAA, the courts should be governed by state law. . . . Because the disclosure is limited in scope, the [informal] interviews do not conflict with the general principles of HIPAA.” Id. at 623.

[P]rivacy protection, while of national importance, is being balanced with discovery issues, which would suggest that it is an area of traditional tort litigation, and therefore within the State’s control.

Diet Drug, 895 A.2d at 502 n.26 (invoking the “presumption” in Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001), “against finding federal preemption where the field is one traditionally occupied by the states”).Likewise, a court in New York ruled that HIPAA does not preempt that state’s discovery practices permitting informal treater interviews:

HIPAA is not a barrier to the relief sought by defendants. . . . Contrary to plaintiff’s assertions, HIPAA itself provides no impediment to the relief sought by defendants. The regulations promulgated under HIPAA provide that under certain conditions, “A covered entity may disclose protected health information in the course of any judicial or administrative proceeding”. . . . [I]n order to foster the truth seeking function of a trial and in order to ensure fundamental fairness and a level playing field, a plaintiff should not be allowed to simply refuse to provide an appropriate authorization to defendants yet seek to interview these same health care providers for potential trial testimony.

Steele v. Clifton Springs Hospital & Clinic, 788 N.Y.S.2d 587, 589-90 (N.Y. Sup. 2005) (citing 45 C.F.R. §164.512(e)). See Anderson v. City of New York, 2006 WL 1134117, at *1 (Mag. E.D.N.Y. April 28, 2006) (applying New York law).Contrary cases are not persuasive. Law v. Zuckerman, 307 F. Supp.2d 705 (D. Md. 2004), for example, stated “[i]f a state law can force disclosure without a court order, or the patient’s consent, it is not ‘more stringent’ than the HIPAA regulations.” Id. at 711. Law thus ignored (or the parties did not bring to the court’s attention) 45 C.F.R. §164.512(e)(1)(ii), which expressly exempts from preemption state-law discovery without a court order as long a there is “notice” and an opportunity to be heard. Further Law, 307 F. Supp. 2d at 710, and Croskey v. BMW of North America, Inc., 2005 WL 1959452, at *5 (E.D. Mich. Feb. 16, 2005), both relied on the district court opinion in National Abortion Federation v. Ashcroft, 2004 WL 292079 (N.D. Ill. Feb. 6, 2004), which was disapproved on this precise point by the Seventh Circuit in Northwestern Memorial Hospital, 362 F.3d at 925-26.