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The Court originally scheduled this matter for hearing. Upon review of the

parties’ papers, however, the Court finds that oral argument is not necessary. See E.D.

Mich. LR 7.1(e)(2).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JULIE PALAZZOLO,

Plaintiff,

v. Case No. 09-10043

KULWINDER SINGH MANN, and

THE BUFFALO GROUP OF HONORABLE AVERN COHN

COMPANIES, INC.,

Defendants.

_____________________________/

MEMORANDUM AND ORDER

GRANTING DEFENDANTS’ MOTION FOR A PROTECTIVE ORDER1

I. Introduction

This case is a tort case for damages resulting from injuries sustained in a motor

vehicle accident. Plaintiff Julie Palazzolo says she was injured when a vehicle owned

by defendant the Buffalo Group of Companies, Inc. and driven by defendant Kulwinder

Singh Mann failed to maintain its lane and struck her while she was driving. Plaintiff has

sued defendants claiming negligence (count I) and seeks damages in excess of the

limitations allowable under the Michigan No-Fault Act (count II). 

Before the Court is defendants “Motion for Qualified Protective Order and

Authorization Pursuant to Health Insurance Portability Act and Accountability Act

(HIPAA),” 42 U.S.C. § 1320d et seq. The issue presented is whether a protective order,

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consistent with HIPPA, may contain a provision that allows for defendants’ counsel to

conduct ex parte interviews with plaintiff’s treating physicians. The answer is yes. For

the reasons that follow, the motion is GRANTED. 

II. Background

On November 12, 2008, plaintiff filed her complaint in state court. Defendants

removed the case to federal court on the grounds of diversity of citizenship. 

On January 8, 2009, defendants sent a proposed protective order to plaintiff’s

counsel seeking access to plaintiff’s medical records in accordance with HIPPA. On

January 13, 2009 Plaintiff’s counsel rejected the proposed protective order. Defendants

then filed the instant motion. 

III. Analysis 

A. Parties’ Arguments 

Defendants contend that under Michigan law, defense counsel are allowed to

conduct ex parte interviews of a plaintiff’s treating physicians in cases such as this

where the plaintiff has instituted an action involving claims of personal injuries. They

also argue that plaintiff has waived any physician-patient privilege when she filed a

complaint putting her medical condition at issue. Defendants further argue that

Michigan law and federal law specifically allows for a qualified protective order which 

permits defense counsel to conduct ex parte oral interviews with plaintiff’s treating

physicians, if the qualified protective order is consistent with applicable federal

regulations implementing HIPPA.

Plaintiff says that waiving the physician-patient privilege under Michigan law does

not waive her protections under HIPAA. Plaintiff also says that HIPAA is designed to

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protect against the communication of medical information without the consent of the

patient and discourages informal discovery such as ex parte meetings. Plaintiff argues

that the intent of HIPAA cannot be reconciled with Michigan’s pre-HIPAA cases finding

that ex-parte meetings are permitted. Plaintiff asks that the Court deny defendants’

motion or in the alternative, order Defendant to give notice to Plaintiff of any ex parte

meetings with plaintiff’s treating physicians and order defendant to advise plaintiff’s

treating physicians they are not required to comply with defendant’s request for ex parte

meetings. 

B. Discussion

As an initial matter, plaintiff has put her medical condition at issue in this case

and as such, defendants are entitled to discovery regarding her medical condition in

order to properly defend themselves. Michigan law is well established, prior to HIPAA,

that the filing of a personal injury action generally waived the statutory physician-patient

privilege regarding any injury at issue in the case, see M.C.L. § 600.2157, and that a

defendant was permitted to meet ex parte with the plaintiff’s treating physician as part of

discovery. See Domako v. Rowe, 438 Mich. 347 (1991). Federal law is in accord. See

Harahara v. Northville, No. 07-CV-12650, 2007 WL 2713847, * 2 (E.D. Mich. Sept. 18,

2007) (citing Hancock v. Dodson, 958 F.2d 1367, 1373 (6th Cir. 1992)).

Under HIPAA, however, the filing of a lawsuit does not waive the disclosure of

confidential health information and HIPAA establishes certain procedures by which

confidential health information may be disclosed. Clearly, HIPAA supercedes Michigan

law to the extent that its protections and requirements are more stringent than those

provided by state law. See Law v. Zuckerman, 307 F. Supp. 2d 705, 711 (D. Md. 2004). 

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Defendants maintain that even under HIPAA, they are permitted to have ex parte

communications with plaintiff’s treating physicians so long as an appropriate protective

order is in place. Plaintiff contends otherwise. 

As a general matter, HIPAA and the regulations promulgated by the Secretary of

Health and Human Services in the Code of Federal Regulations set forth the baseline

for the release of health information. The starting point for the HIPAA regulations at

issue is 45 C.F.R. § 164.512 which governs the disclosure of confidential health

information in judicial proceedings. 45 CFR § 164.512(e)(1) provides in part as follows:

Permitted disclosures. 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.

This section does not explicitly mention ex parte interviews. However, the Michigan

Court of Appeals recently addressed the question, presented here, of whether ex parte

interviews are permitted under HIPAA so long as there is a protective order in place. 

The Michigan Court of Appeals concluded it does, explaining: 

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Bayne v. Provost, 359 F. Supp. 2d 234 (N.D.N.Y. 2005).

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While 45 CFR 164.512(e)(1)(ii) does not specifically address oral

communications, neither does it exclude oral or spoken information from the

regulations governing disclosure of protected health information. As our

Supreme Court observed in Domako, supra at 362, 475 N.W.2d 30, where rules

are not meant to be exhaustive, “the omission of oral interviews does not mean

that they are prohibited.” In fact, 45 CFR 160.103 specifically provides that

HIPAA applies to both oral and written information, and 45 CFR 164.512(e)(2)

makes clear that the regulations concerning qualified protective orders “do not

supersede other provisions of this section that otherwise permit or restrict uses or

disclosures of protected health information.” Thus, as the federal district court

determined in Bayne,

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 supra at 241, “if a qualified protective order, consistent

with [45 CFR 164.512(e) ], was in place then an ex parte discussion with the

health provider would be appropriate.”

Plaintiff argues that it should be sufficient for defendant to rely on written medical

records or to depose Clippert's physicians if more information is desired.

However, as our Supreme Court observed in Domako, supra at 360, 475 N.W.2d

30, it is “routine practice ... to talk with each witness before trial to learn what the

witness knows about the case and what testimony the witness is likely to give”

and “[t]here is no justification for requiring costly depositions ... without knowing

in advance that the testimony will be useful.” Id. at 361, 475 N.W.2d 30.

The circuit court erroneously concluded that oral interviews cannot be the subject

of qualified protective orders under HIPAA. Quite simply, defendants may

conduct an ex parte oral interview with Clippert's physician if a qualified

protective order, consistent with 45 CFR 164.512(e)(1), is first put in place.

Bayne, supra at 241

Holman v. Rasak, 281 Mich. App. 507, 512-13 (2008). The Court agrees with the

holding in Holman. Defendants may conduct ex parte interviews with plaintiff’s treating

physicians consistent with HIPAA. Defendants have also cited numerous cases by

courts in various jurisdictions, including this district, who have held that ex parte

interviews are permitted under HIPAA so long as there is a protective order in place

consistent with 45 C.F.R. § 164,5132(e). There is no need to cite these cases here,

other than to note that they are consistent with the court of appeals’ decision in Holman. 

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The district court adopted these requirements from a case in the Northern

District of New York, Bayne v. Provost, 359 F. Supp. 2d 234 (N.D.N.Y. 2005), also cited

by the court of appeals in Holman. 

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As to the requirements of the ex parte interviews, another judge in this district

considered the issue and set forth the following parameters:

. . . under 45 C.F.R. § 164.512(e)(1)(ii)(B), a qualified protective requires neither

specific notice to Plaintiff's counsel nor Plaintiff's consent before Defendant may

interview Plaintiff's treating physician ex parte. It does, however, require clear

and explicit notice to Plaintiff's treating physician both as to the purpose of the

interview and to the fact that the interview is not required. Only by complying

with these restrictions, and the requirements made explicit under the statute, may

Defendant conduct an ex parte interview with Plaintiff's treating physician.

Croskey v. BMW of North Am., No. 02-73747, 2005 WL 4704767, * 5 (E.D. Mich. Nov.

10, 2005).3

 The Court agrees that these requirements are reasonable and in keeping

with HIPAA’s regulations.

Defendants submitted a draft protective order, attached as Exhibit C to their

motion. The draft order meets the requirements set forth in this decision. As such, the

Court will enter the order. 

SO ORDERED.

 s/Avern Cohn 

Dated: March 19, 2009 AVERN COHN

UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, March 19, 2009, by electronic and/or ordinary mail.

 s/Julie Owens 

Case Manager, (313) 234-5160

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