## Facts

- A patient sued her gynecologist in a diversity medical-malpractice action governed by Maryland substantive law.
- The alleged malpractice involved laser ablation of the patient’s cervix; the patient claimed the procedure caused cervical incompetence and pregnancy-related complications.
- During a subsequent pregnancy, the patient received treatment from another physician, who discussed options including a cervical cerclage.
- The patient sought damages that included care provided by the subsequent treating physician.
- Defense counsel obtained the patient’s medical records through discovery and had ex parte discussions with the treating physician about the patient’s care.
- Mid-trial, the patient orally moved to prohibit further ex parte communications and/or require disclosure of prior ex parte contacts, asserting violations of the HIPAA Privacy Rule.

## Issues

1. Whether ex parte discussions by defense counsel with the plaintiff’s treating physician about the plaintiff’s care, without HIPAA-compliant authorization or court safeguards, violate the HIPAA Privacy Rule.
2. If a violation occurred, whether the court should bar further ex parte communications and impose related trial-level remedies.

## Decision

- The court concluded that ex parte discussions between adverse counsel and a treating physician about the patient’s care are prohibited absent strict compliance with HIPAA’s disclosure requirements.
- The court rejected the view that state malpractice practice alone made the disclosure permissible under HIPAA’s “required by law” provision without HIPAA’s procedural conditions.
- Despite finding a HIPAA violation, the court denied the plaintiff’s motion to preclude further ex parte interviews and declined to impose the requested categorical remedy during the ongoing trial.

## Legal Principles

- Treating physicians, as covered entities, may not disclose protected health information in response to informal, ex parte requests in litigation unless a HIPAA-permitted disclosure pathway is satisfied (e.g., valid authorization, court order, or qualified protective order).
- HIPAA operates as controlling federal law that constrains state-law litigation practices when those practices would allow disclosures without HIPAA’s procedural safeguards.
- A HIPAA violation does not automatically require evidentiary exclusion or a blanket prohibition on further contact; trial courts retain discretion to select remedies suited to the circumstances and to allow future disclosures through HIPAA-compliant mechanisms.

## Conclusion

The court held that defense counsel’s ex parte communications with a treating physician about the plaintiff’s care, conducted without HIPAA-compliant safeguards, violated the HIPAA Privacy Rule, but it denied the plaintiff’s request to bar further ex parte contact, treating remedy selection as a discretionary, case-specific determination.


Law v. Zuckerman, 307 F. Supp. 2d 705 (D. Md. 2004)