Monday, April 15, 2013

Meier v Awaad: Extending the Physician-Patient Privilege Beyond Physicians


In Michigan, the physician-patient privilege is a statutory privilege enacted to “protect the confidential nature of the physician-patient relationship.” While this privilege previously only extended to prevent physicians from disclosing patient information, a new Michigan Court of Appeals case seems to have changed this.

In Meier v. Awaad, No. 310808 (Mich. Ct. App. March 12, 2013), former patients alleged that a physician intentionally misdiagnosed patients as having epilepsy or seizure disorder in order to increase the physician’s reimbursement under public and private insurance plans. During the course of discovery, the plaintiffs subpoenaed the Michigan Department of Community Health (“MDCH”), requesting the names of all Medicaid beneficiaries that were diagnosed with epilepsy or seizure disorder by the doctor. The MDCH refused to disclose the information without a court order, so the plaintiffs sought and received a trial court order compelling MDCH to disclose the patients’ names and addresses. The defendant physician appealed the trial court’s order.

In its opinion, the state court of appeals in Meier first addressed the issue of whether HIPAA would preempt the physician-patient privilege in this context. Quoting from its previous decision in Isidore Steiner, DPM PC v Bonanni, No 294016 (Mich Ct App Apr 7, 2011), the court found that while HIPAA “asserts supremacy in this area,” the application of state privilege law is not preempted where it is “more protective of patients’ privacy rights.” Here, HIPAA only required notice to the patient to effectuate disclosure, whereas the physician-patient privilege required the patient’s consent.  Accordingly, the court found that Michigan law was not preempted because it was more protective of patients’ privacy.

Next, the court addressed the scope of the physician patient-privilege. Under previous case law, Michigan courts had applied the privilege to a physician after the plaintiffs in that case tried to obtain information on the physician’s other patients through discovery. See Isidore Steiner. The court in Isidore Steiner reasoned that “protecting the interests of…nonparty patients is of utmost importance.” The difference between Isidore Steiner and Meier, however, is that the Isidore Steiner decision applied the privilege to a physician, whereas the Meier decision applied the privilege to the MDCH.

On its face, the physician-patient privilege only applies to disclosures made by “a person duly authorized to practice medicine or surgery.” The plaintiffs therefore argued that the MDCH could not rely on the privilege because it was not “a person duly authorized to practice medicine or surgery.” The plaintiffs also argued that only patients are able to assert the privilege and that MDCH therefore could not seek the protection provided by the privilege. The court disagreed, holding that the privilege applied to the MDCH and that it existed “by operation of law,” meaning patients do not need to affirmatively assert it for it to exist. The court also noted that only the patient may waive the privilege. However, the court did not address the issue of how a patient is supposed to waive the privilege without first being made aware of its existence.