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Ethics and Adverse Witnesses

Bill Day & Lucy R. Hirsch T

he purpose of this article is to provide guidance to legal practitioners on ex parte communication with adverse witnesses. Te article discusses ex parte communications

with treating physicians, with former employees of an opposing party, and with adverse expert witnesses. Tough not based on ethical rules alone, this article should be useful to practitioners in the Maryland state and federal courts.1

Ex parte Communications with Treating Physicians

Te Health Insurance Portability and Accountability

Act, 42 U.S.C. 1320d et seq. (HIPAA) and Maryland law are arguably in conflict with one another in regards to the types of information released by treating physicians to opposing counsel without the consent and potentially without the knowledge of the interested person. On the one hand, Section 4-306(b)(3) of the Health Article of the Maryland Code, or the Maryland Confidentiality of Records Act (MCMRA), requires that health care providers disclose the medical records without the authorization of a party in interest “to a health care provider…or legal counsel, all information in a medical record relating to a patient or recipient’s health…or treatment which forms the basis for the issues of a claim in a civil action initiated by the patient, recipient, or person in interest.” On the other hand, HIPAA only allows for disclosure of these records without actual notification of the interested person in a number of very limited circumstances and in those instances notes that a covered entity “may” disclose such information. 45 C.F.R.§164.512. More significantly, HIPAA promises punishment to those who violate its provisions:

(a) A person who knowingly and in violation of this part – (1) uses or causes to be used a unique health identifier (2) obtains individually identifiable health information relating to an individual; or

1 Maryland federal courts have adopted the Maryland Lawyers’ Rules of Professional Conduct. Local Rule 704 states: “Tis Court shall apply the Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals”. Further, the District Courts apply the rules as they have been construed by the Maryland Court of Appeals, Rogosin v. Mayor and City Council of Baltimore, 164 F. Supp. 2d 684, 686 (D. Md. 2001).

(3) discloses individually identifiable health information to another person shall be punished as provided in Section(b) of this section.

For purposes of the previous sentence, a person (including an employee or other individual) shall be considered to have obtained or disclosed individually identifiable health information in violation of this part if the information is maintained by a covered entity (as defined in the HIPAA privacy regulation described in section 1320d–9 (b)(3) of this title) and the individual obtained or disclosed such information without authorization. 42 U.S.C.§1320d-6. Te conflict represents competing policy concerns – the

desire to protect an individual’s privacy and desire for the fair and informed resolution of a given matter. Case law from Maryland’s federal courts have attempted

to resolve this conflict. In Law v. Zuckerman, the court found that HIPAA preempts the MCRMA or “controls” on the issue of ex parte communications with treating physicians. See, Law v. Zuckerman, 307 F. Supp. 2d 705, 709 (D. Md. 2004). Notably, mere contact between Plaintiff ’s physician and Defendant’s counsel is not regulated by HIPAA. Id. at 708. Such contact could “include discussion of many benign topics, including but not limited to, the best methods for service of a subpoena, determining convenient dates to provide trial testimony, or the most convenient location for the anticipated deposition of the physician.” Id. Te fact that section 4-306(b) (3) of the Maryland Code is preempted does not mean that counsel is not entitled to any information from a treating

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