Plaintiff filed a Michigan medical malpractice case against the defendant assisted living facility for injuries she sustained on May 20, 2020, when another resident at defendant’s assisted living facility allegedly caused plaintiff to fall. During the discovery process, defendant requested that the trial court enter a qualified protective order (“QPO”) that would permit defendant to conduct ex parte meetings with plaintiff’s healthcare providers. Plaintiff insisted that defendant should not be permitted to conduct any ex parte interviews with plaintiff’s healthcare providers. Alternatively, plaintiff contended that if the trial court permitted such meetings, defendant should be required to identify the individuals whom it intended to interview or that defendant be required to provide prior notice to plaintiff of any meetings.
Plaintiff claimed that a notice condition was appropriate because (1) it would promote the legislative intent of the Health Insurance Portability and Accountability Act (HIPAA), 42 USC 1320d et seq., by informing plaintiff of the providers who were accessing her health information, (2) other statutes that govern the disclosure of health information impose notice conditions, and (3) plaintiff was entitled to know when her healthcare information had been disclosed and by whom the disclosure was made. Defendant argued in reply that plaintiff had not provided good cause to support the inclusion of a notice condition in the QPO because she had failed to identify any case-specific facts that established good cause to justify the notice condition. Nevertheless, the trial court issued a QPO with a condition requiring defendant to “disclose to Plaintiff within 7 days of any such [ex parte] meetings who they have interviewed.” The defendant filed an interlocutory appeal.
The State of Michigan Court of Appeals stated in its unpublished Per Curiam dated December 6, 2024 that ex parte interviews are permitted under Michigan law, and nothing in HIPAA specifically precludes them. HIPAA balances the need for disclosure in certain contexts with the importance of individual privacy, so ex parte interviews of healthcare providers do not contravene HIPAA’s purpose so long as the interviews are sought according to the specific requirements of 45 CFR 164.512(e).
Under 45 CFR 164.512(e), a “covered entity” may disclose protected health information in the course of any judicial proceeding in response to “a subpoena, discovery request, or other lawful process, that is accompanied by an order of a court” if that covered entity “receives satisfactory assurances . . . from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of” 45 CFR 164.512(e)(1)(v). In order to meet the requirements of 45 CFR 164.512(e)(1)(v), a QPO must clearly state that it “[p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested” and it “[r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.” 45 CFR 164.512(e)(1)(v)(A)-(B).
The Michigan appellate court stated: “According to MCR 2.302(C), “[o]n motion by a party or by the person from whom discovery is sought, and on reasonable notice and for good cause shown, the court in which the action is pending may issue any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Thus, a trial court cannot impose a condition on an ex parte interview unless good cause for the condition has been established. Szpak, 290 Mich at 714. Generalized concerns are insufficient to establish good cause. Id. at 716. Instead, the party seeking the imposition of a condition must identify case-specific facts demonstrating good cause to impose the requested condition. Id. at 715-716. A fear that could be “theoretically present in any medical malpractice case” is insufficient to demonstrate good cause. Id. at 715.”
The Michigan appellate court held in the case it was deciding: “Here, the trial court entered a QPO that permitted defendant to conduct ex parte meetings with plaintiff’s treating physicians and healthcare providers, provided that defendant must disclose to plaintiff whom it interviewed within 7 days. The trial court made no factual findings to support the imposition of that condition … plaintiff’s request for notice of meetings with her healthcare providers has no bearing on the disclosure of her health information, so “MCR 2.302(C) requires that the additional conditions be justified in their own right” … the use of ordinary discovery tools to obtain information about any ex parte meeting defendant conducted does not impose an undue burden on plaintiffs … HIPAA allows the dissemination of protected health information pursuant to a QPO under certain conditions, but notification to plaintiff that the dissemination occurred is not one of those conditions. See 45 CFR 164.512(e)(1)(v)(A)-(B). And although plaintiff insists that she is entitled to that information under HIPAA, she has not explained why that entitlement, or her desire to monitor dissemination of her protected health information, could not be accomplished through ordinary discovery, which she concedes is an available option … Here, the QPO that defendant proposed met the requirements of 45 CFR 164.512(e)(1)(v), so it did not require the addition of any notice condition to uphold the purpose of HIPAA … Furthermore, plaintiff’s purported justifications for the notice condition do not include any case-specific facts revealing a “specific fear” of “annoyance, embarrassment, oppression, or undue burden or expense” that would be ameliorated by a notice requirement … Because plaintiff failed to establish good cause to impose the notice condition, the trial court abused its discretion when it imposed the notice condition without offering any findings of fact to satisfy the “good cause” standard in MCR 2.302(C) … the trial court has the power on remand to render case-specific findings of fact and then impose a notice condition if those findings of fact establish “good cause” as contemplated by MCR 2.302(C) and the rulings of this Court. But on the existing record, we must vacate the trial court’s inclusion of a notice condition in the QPO.”
Source Deluca v. Brownstown Assisted Living Center, No. 367518.
If you or a loved one suffered harm while a resident of an assisted living facility in Michigan or in another U.S. state due to assisted living resident on resident assault, assisted living fall, assisted living pressure ulcers, assisted living understaffing, assisted living abuse, assisted living neglect, assisted living negligence, or the failure to provide appropriate care for a vulnerable adult, you should promptly find an assisted living claim lawyer in Michigan or in your state who may investigate your assisted living claim for you and file an assisted living claim on your behalf or behalf of your loved one, if appropriate.
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