Citing HIPAA, the Missouri Court of Appeals prohibited a plaintiff’s non-party medical providers from engaging in ex parte communications with defense attorneys. The plaintiff, Proctor, filed a personal injury suit against several medical providers. As part of the discovery in the case, the trial court allowed Proctor’s physicians and other health care providers to speak ex parte with defense counsel, but noting the providers could refuse to do so if Proctor didn’t authorize them to do so. Proctor moved for a writ of prohibition of the order, contending HIPAA prevents such a disclosure and also preempts Missouri state law regarding this issue. In a case of first impression, the Missouri appellate court agreed, concluding that HIPAA preempts state law except for those provisions which are more stringent than HIPAA. Rejecting the trial court’s determination that disclosure was permitted under 45 C.F.R. 164.512(e)(1), which allows a health care provider to disclose protected health information “in the course of any judicial or administrative proceeding,” the appellate court concluded that informal, ex parte communications with defense counsel are not proceedings authorized or held under the supervision of the court. The appeals court also held that the reasoning of a pre-HIPAA Missouri Supreme Court case which found no state law prohibiting such ex parte communications was preempted by HIPAA, since to do otherwise would allow Missouri law to impede HIPAA’s purpose of protecting the disclosure of personal health information.

TIP: HIPAA preempts state law except for those provisions which are more stringent than HIPAA.