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unfair advantage in medical malpractice litigation because they have “unfettered”, i.e., unfair, access to their treating health care providers. Te truth is quite different. Local medical communities are defined by the complex and diverse relationships among health care providers. Personal, professional, and economic relationships within the medical community place great pressure on a plaintiff’s treating health care providers to resist even the slightest appearance of cooperation with plaintiff ’s counsel. Tis is particularly true in the current climate of an alleged medical malpractice litigation “crisis.” In many instances, plaintiff ’s treating health care providers will have direct professional, if not personal, relationships with the defendant physician. Any physician who wishes to maintain crucial referral networks in the local community will treat counsel suing a fellow practitioner with great caution, if not overt hostility. Given that the majority of Maryland physicians are insured by Medical Mutual, many of plaintiff ’s treating health care providers may be insured by the same company as the defendant, and, in fact, may have been represented by defense counsel in plaintiff ’s case. Te truth is that HIPAA has already leveled the playing field and it is the defendant who would gain (or regain) unfair advantage if allowed ex parte contact with plaintiff ’s treating health care providers. In the pre-HIPAA case of Manion v. NPW Medical Ctr.,

Inc., 676 F. Supp. 585 (M.D. Pa. 1987) the United States District Court for the Middle District of Pennsylvania confronted head on the issue of ex parte communications between defense counsel and plaintiff ’s treating physicians in a medical malpractice case.

Tis court will not overlook the current concerns in the medical malpractice insurance industry and the attitudes of physicians and carriers alike. An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician’s views. Te potential for impropriety grows even larger when defense counsel represents the treating physician’s own insurance carrier . . .

Manion v. NPW Medical Ctr., Inc., 676 F. Supp. at 594-595. Given the current political climate in the State of Maryland, the concerns expressed above remain relevant. Often, aside from “fairness” in general, little if any specific

rationale is offered by defense counsel seeking ex parte contact with plaintiff ’s treating health care providers. One reason sometimes offered is a “need to more clearly understand plaintiff ’s medical history, condition and prognosis.” Tis claim ignores the fact that defendant can procure any and all of plaintiff ’s medical records through established methods of discovery, and can note the deposition of any fact witness thought necessary to shed further light on relevant issues. Even in the context of orders of court permitting ex

parte disclosure, the word and spirit of HIPAA requires that disclosures be closely limited to information relevant to the medical issues in the case at hand. In cases in which courts have granted “limited protective orders”, the wording of the orders generally reflect an attempt to limit disclosure to relevant information. However, that limitation is easier stated than implemented, and the situation certainly presents a dilemma to the health care provider who runs the risk of violating HIPAA by divulging irrelevant medical information. As the Iowa Supreme Court stated in a pre-HIPAA case,

[t]he possibility of inadvertent wrongful disclosure troubles us. We do not mean to question the integrity of doctors and lawyers or to suggest that we must control discovery in order to assure ethical conduct. We are concerned, however, with the difficulty of determining whether a particular piece of information is relevant to the claim being litigated. Placing the burden of determining relevance on an attorney, who does not know the nature of the confidential disclosure about to be elicited, is risky. Asking the physician, untrained in the law, to assume this burden is a greater gamble and is unfair to the physician. We believe this determination is better made in the setting in which counsel for each side is present and the court is available to settle disputes.

Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 357 (Iowa 1986). Te irony of defense motions seeking ex parte contact is

that such motions are potentially unfair to plaintiff ’s treating health care providers, who are placed in a position in which they run the risk of violating HIPAA by divulging patient confidences beyond those covered by court order. Another way such motions are potentially unfair to plaintiff ’s treating

42 Trial Reporter / Summer 2009

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