State ex rel. Proctor v. Messina and Ex Parte Communications Under the HIPAA Privacy Rule: The “Judicial Proceedings” Split

摘要

In State ex rel. Proctor v. Messina, the Supreme Court of Missouri held that the HIPAA Privacy Rule does not authorize court orders permitting defense counsel to enter into informal ex parte communications with a plaintiff’s treating, non-party health care provider, absent the plaintiff’s authorization. In overruling the trial court’s order allowing such ex parte communications, the 2010 decision comports with the majority of state courts that prohibit such informal discovery techniques. Notably, however, the Missouri court did not rest its holding on any state substantive rule expressly prohibiting ex parte communications, but on the court’s interpretation of the HIPAA Privacy Rule. The Proctor court is the only tribunal that has held that the HIPAA Privacy Rule, as opposed to state substantive law, does not authorize such communications, pitting itself against many sister state courts that have interpreted the HIPAA confidentiality regulations to the contrary.