Don't Ask, Don't Tell: HIPAA's Effect on Informal Discovery in Products Liability and Personal Injury Cases

I. introduction With the passage of the Health Insurance Portability and Accountability Act of 1996 (HIPAA),1 personally identifiable health information was subjected to a regulatory scheme that was stricter in most jurisdictions than previous regulations. To the average person, this was manifest through an increase in the number of signatures requested by physicians and pharmacists. Practicing attorneys, however, soon came to realize that this legislation affected much more than their time at the doctor's office. HIPAA displays an inherent disdain for informal discovery, a disdain that has led some attorneys to complain that HIPAA's restrictions prevent them from adequately serving their clients.2 In particular, the privacy rules promulgated by the U.S. Department of Health and Human Services (DHHS) under HIPAA directly affect the way in which litigators pursue informal discovery, such as ex parte interviews (i.e. interviews conducted without notice to the adverse party).3 This Comment discusses not only the effects of HIPAA that have already been discussed by the courts, but also delves into unresolved questions regarding informal discovery. Until questions about the extent of HIPAA's applications are answered, attorneys and investigators will continue to be forced onto unsteady ground in their efforts to provide their clients with high-quality representation. This Comment argues that while the courts have recognized and accepted HIPAA's disdain for informal discovery (particularly in the form of ex parte interviews between physicians and attorneys), this disdain should not extend to ex parte communications between emergency response personnel and attorneys. In many jurisdictions, HIPAA has been interpreted to limit contact with a plaintiff's physician to formal discovery through depositions and interrogatories. In some jurisdictions, ex parte interviews are never allowed. This stance is understandable considering the premium placed on personal health information and the policy considerations that support protection of the physician-patient privilege. But the rules and definitions of HIPAA have, perhaps unintentionally, extended this restriction against ex parte interviews to emergency response personnel. In the past, common practice in products liability or personal injury litigation has been for the attorney to conduct informal interviews with fact witnesses, such as EMTs, in an effort to obtain as much information as possible during the early stages of litigation. A cautious and perceptive attorney, or an attorney threatened with HIPAA sanctions by opposing counsel, would note that technically, HIPAA proscribes such interviews with EMTs and paramedics. This Comment argues that such a proscription is unnecessary, and should be eliminated. The application of HIPAA's regulatory scheme to EMTs and paramedics can be problematic for an attorney, especially one who is used to conducting ex parte interviews according to common practice.4 Nevertheless, should the courts strictly adhere to HIPAA's language, it is both likely and unfortunate that emergency response personnel would be subject to the same restrictions as a plaintiff's physician, thus eliminating useful tools for early discovery in products liability and personal injury litigation. But strong policy reasons support excluding EMTs and paramedics from HIPAA's restrictions. The physician-patient privilege, which supplies much of the incentive for the privacy of personal medical information, does not exist in an emergency responder context.5 As a result, the policy implications of the physician-patient privilege are weakened in an emergency response context. EMTs and paramedics do not usually have a continuing relationship with patients, nor are they particularly sought out or chosen by patients. And most importantly, there is no historical legal basis for applying the physician-patient privilege to EMTs or paramedics. EMTs and paramedics are also less likely to disclose confidential personal information. …