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medical malpractice and other personal injury plaintiffs, the new HIPAA regulations, if applicable, provided a virtual prohibition of such contacts in all but extremely limited circumstances.


C. Defense Motions for Qualified Protective Orders


As any good lawyer would, defense counsel immediately set out to find the loopholes in the law. Te result was an explosion of motions requesting “limited protective orders” allowing ex parte contact between defense counsel and treating health care providers. Tese motions generally make the same series of arguments. While the specific wording differs, the arguments are: 1. Maryland law permits ex parte contact between defense counsel and plaintiff ’s treating health care providers.


2. HIPAA provides a mechanism through which ex parte contact may be accomplished.


3. “Fairness” requires that defense counsel be allowed ex parte contact with plaintiff ’s treating health care providers.


4. Denying defense counsel the ability to conduct ex parte interviews, i.e., informal discovery, is inefficient and wasteful.


Defense counsel generally conclude their motions by


attaching as exhibits whatever orders they can locate from Circuit Court judges granting previous motions, regardless of venue or underlying factual differences. An examination of the defense arguments is in order.


1. Maryland law permits ex parte contact between Defense counsel and Plaintiff ’s treating health care providers.


40 Trial Reporter / Summer 2009


As stated in Butler-Tulio, there is no prohibition in


Maryland of ex parte contact between defense counsel and plaintiff ’s treating health care providers. However, under 45 CFR. § 160.203, with certain exceptions not relevant here, a state law that is contrary to the requirements of HIPAA is preempted unless it is “more stringent” in its medical information privacy provisions. Te key component in analyzing HIPAA’s “more stringent” requirement is the ability of the patient to withhold permission and to effectively block disclosure of covered medical information, including “oral” medical records, i.e., oral communications regarding medical information. Maryland law fails to satisfy the “more stringent” standard. Federal law is therefore controlling. Tus, all ex parte communications between defense counsel and plaintiff ’s health care providers must be conducted in accord with the procedures set forth in HIPAA.See Law v. Zuckerman, 307 F. Supp. 2d 705, 708-711 (D. Md. 2004). Any argument about Maryland law in this context is irrelevant. Te sole issue is whether, and under what circumstances, HIPAA regulations allow ex parte contact.


2. HIPAA provides a mechanism through which ex parte contact may be accomplished. Tis is technically a true statement, but must be considered


in context. In HIPAA, “Congress has ‘spoken’ about the protection that must be extended to patients regarding their health related information.” EEOC v. Boston Market Corp., 2004 U.S. Dist. Lexis 27338, *7 (E.D. N. Y., December 16, 2004). In short, as one court has phrased it, HIPAA evidences a “distaste” for informal discovery such as ex parte meetings between a patient’s adversaries and health care providers. Croskey v. BMW of North America, Inc., 2005 U.S. Dist. Lexis 3673, *15-16 (S.D. Mich., February 14, 2005). HIPAA simply does not permit informal discovery, and such informal


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