Hipaa as a Political Football and its Impact on Informal Discovery in Employment Law Litigation

33 Pages Posted: 14 Apr 2006 Last revised: 24 May 2009

See all articles by Brian K. Powell

Brian K. Powell

Northern Kentucky University - Salmon P. Chase College of Law

Richard A. Bales

Ohio Northern University - Pettit College of Law


Plaintiffs in many litigated employment cases hire medical or psychological experts to buttress their claims of physical or mental injuries. Prior to HIPAA's 1996 enactment, many jurisdictions explicitly permitted a defendant-employer to engage in various degrees of ex parte contact with a plaintiff-employee's treating physicians. Such informal discovery was much faster and cheaper than formal discovery by deposition and expert reports, and arguably helped dampen the overall cost of litigation. However, HIPAA changed this dynamic profoundly: the statute sets a high standard of privacy protection, and broadly preempts contrary state law. Moreover, while plaintiff-employees can use HIPAA to thwart informal discovery by defendant-employers, defendant-employers cannot use HIPAA's privacy shield to thwart discovery by plaintiff-employees of the defendant-employers' human resource records. In this way, HIPAA acts as both shield and sword in favor of plaintiff-employees.

Some courts have held that HIPAA flatly prohibits ex parte contacts with a party's treating physician. This approach has three policy advantages: it (1) promotes frank and earnest discussion between patient and physician; (2) provides a clear, bright-line rule; and (3) curtails informal fishing expeditions by defendants. However, this approach also has three drawbacks: it (1) increases litigation costs by limiting the parties to expensive formal discovery; (2) prolongs the discovery process; and (3) promotes trial inefficiency, taxing the courts in time and oversight.

This article argues that courts should adopt a compromise position by carefully balancing the privacy expectations and standardization interests on the one hand with cost effectiveness and judicial expediency on the other. Courts should do so by permitting defendant-employers to engage in ex parte contacts with treating physicians, but only within the protective controls afforded by state law. This approach would cohesively blend federal privacy concerns with state procedural independence, generating a salutary spirit of cooperative federalism.

Keywords: hipaa, privacy, ex parte, discovery, physician, informal

JEL Classification: J28, J32, J38, K23, K31, K41

Suggested Citation

Powell, Brian K. and Bales, Richard A., Hipaa as a Political Football and its Impact on Informal Discovery in Employment Law Litigation. Penn State Law Review, Vol. 111, p. 137, 2006. Available at SSRN: https://ssrn.com/abstract=895684

Brian K. Powell

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

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