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court was well within its discretion in allowing Dr. Luethke’s testimony. In short, the Court gave little consideration to the concept that, because of the confidential nature of the physician-patient relationship, the jury may have given undue weight to expert opinions expressed by a treating heath care provider as opposed to a non-treating expert witness. Butler- Tulio v. Scroggins, 139 Md. App. at 146. Appellant’s third argument, that allowing a treating


physician to testify as an expert witness against a patient in a medical malpractice case, as Dr. Luethke was permitted to do, "threatens the integrity of the judicial process” is, perhaps better put, an argument that allowing such testimony threatens the integrity of the confidential relationship between physician and patient. As will be discussed below, the medical profession’s own ethical pronouncements establish the premise that a duty and expectation of confidentiality lies at the heart of the physician-patient relationship. Appellant in Butler-Tulio, however, framed the issue more in regard to whether Dr. Luethke was provided confidential information as an expert witness not expected to testify at trial per Rule 2-402(e)(2). In rejecting that argument, the Court of Special Appeals stated that Dr. Luethke was not a previously retained expert “who was given a substantial amount of confidential information about plaintiff's case”, but was “given only a bare bones medical history and description of appellant's claim.” Tus, “having placed her medical condition at issue, appellant had no reason to believe that the results of Dr. Luethke's examination would be kept confidential.” Butler-Tulio v. Scroggins, 139 Md. App. at 148 - 149. Appellant’s fourth and final argument was that Dr.


Luethke’s testimony should have been excluded because of his ex parte contacts with defense counsel. Tat argument, which is really at the center of the entire matter, fell of its own weight once the court refused to recognize any reasonable expectation of confidentiality on the part of a personal injury plaintiff with regard to patient-physician communications. “Tere is . . . no . . . prohibition in Maryland against what appellant describes as "ex parte contacts" between a lawyer and the treating physician of an adverse party who has placed her medical condition in issue.” Butler-Tulio v. Scroggins, 139 Md. App. at 150. In 2001, when the Court of Appeals denied certiorari in


the case of Butler-Tulio v. Scroggins, 139 Md. App. 122, 774 A.2d 1209, cert. denied, 366 Md. 247, 783 A.2d 221 (2001), it seemed that questions regarding the medical confidentiality rights of plaintiffs in medical malpractice litigation had been resolved. After Butler-Tulio, it appeared that any medical confidentiality afforded to Maryland plaintiffs in litigation would have to be supplied by the legislature. Given the political atmosphere, that seemed unlikely.


B. HIPPA At about the same time that the Butler-Tulio decision


was released, the United States Department of Health and Human Services (HHS) was in the process of issuing privacy regulations governing individually identifiable health information in accordance with the mandates of the Health


Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d, et seq. (HIPAA). When passed by Congress, HIPAA required the Secretary of HHS to issue regulations governing individually identifiable health information if Congress did not enact privacy legislation within three years of the passage of the statute. Congress did not meet the three year deadline and, on November 9, 1999, HHS released proposed regulations for public comment. Tose regulations were issued in final form on August 14, 2002 and became effective for all but a small subset of health care providers on April 14, 2003. Codified as 45 CFR § 160, et seq., (Privacy of Individually Identifiable Health Information), the new HIPAA regulations specify the methods by which health care providers may disseminate health information “whether oral or recorded in any form or medium . . .”


45 CFR § 160.103. Te new


regulations caused a sea of change by closely circumscribing the circumstances in which health care providers may release covered health information regarding their patients. Suddenly, health care providers of all types were confronted with a multitude of new regulations, duties, and paperwork. Some hospitals and large medical practices created new positions and, in some cases, entire departments devoted to HIPAA compliance issues. Te impact of the new HIPAA regulations has not been


confined to health care providers. Attorneys, particularly those practicing medical malpractice law, have been


confronted


with new rules as well. In Maryland, whereas the Butler- Tulio opinion provided defense attorneys blessing for virtual carte blanche ex parte access to the health care providers of


Trial Reporter / Summer 2009 39


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