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
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: Suggested Citation