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Ex Parte Communications with Treaters

Sometimes opposing counsel may want to obtain records and/or speak with a plaintiff’s healthcare provider. That typically is not allowed. Under the HIPAA statute, there may however be an avenue to allow such communications. 

HIPAA says that a covered entity such as a healthcare provider may not use or disclose protected health information. 

The exceptions to that are where the patient grants permission, formal discovery or where the court issues an order for good cause to allow such. 45 C.F.R. § 164.512(e)

To allow this latter disclosure in the course of a judicial or administrative proceeding, the court has to determine that there is such good cause.

Nowhere within this regulation is there anything that expressly allows ex-parte communications. 

Ex Parte Communications Treaters-Case Law

In Proctor v. Messina, 320 S.W.3d 145 (MO 2010), the court expressly said that the court has no authority to issue an order advising plaintiff’s non-party treating physicians that they may or may not partake in informal discussions with other persons. 

In Virginia, the regulation of such communications is probably governed by Va. Code § 8.01-399. Similar to the federal regulation, it allows such disclosures by consent of the patient or through the formal discovery process or through testimony at trial. In addition however disclosure may be ordered when a court, in the exercise of sound discretion, deems it necessary to the proper administration of justice. 

That latter phrase is rather ambiguous. It probably is somewhat consistent with the federal regulation cited above imposing the good cause requirement. 

If a provider is out of state or is a federal facility, then the court may order that the plaintiff sign an authorization releasing such records. That authorization however should be expressly tailored to allow only for the release of records. No other type of communication with the healthcare provider should be allowed. 

Contact a Trusted Personal Injury Lawyer in Northern Virginia

Call, or contact us for a free consult. Also for more info on HIPAA see the Wikipedia pages. Also see the post on this site dealing with medical record issues.

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Brien Roche

Brien A. Roche has been an attorney since 1976. Mr. Roche is admitted to practice in Virginia, the District of Columbia, and Maryland. In addition to his busy law practice, Mr. Roche is also a published author of several books & articles relating to the practice of law.

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