In Sampson v Shorepointe Nursing Center, the trial court ordered defense counsel to notify the plaintiff’s counsel every time they met with one of the plaintiff’s healthcare providers. Collins Einhorn appellate attorney Michael J. Cook successfully obtained reversal of the post-meeting-notice provision.
Defense attorneys commonly request HIPAA-compliant qualified protective orders so that they can contact a plaintiff’s treating physicians. For years, plaintiff attorneys have been asking courts to include additional, cumbersome notice conditions in those orders. The Court of Appeals rejected provisions requiring defense counsel to notify plaintiff’s counsel before they met with a treating physician a while ago. But plaintiff attorneys recently started having success in getting courts to include cumbersome post-meeting notice provisions.
In Sampson, for example, the trial court granted the plaintiff’s request for a provision requiring the parties to notify each other within 14 days of any meeting with one of the plaintiff’s healthcare providers. The majority held that the trial court abused its discretion by including such a provision in a HIPAA-compliant qualified protective order. Protective orders require a showing of good cause for protection from undue burden and expense. The plaintiff was free to seek the same information through interrogatories or other discovery mechanisms. “[W]e cannot agree,” the majority said, “that an ordinary discovery request, and the assertion of a privilege in response to the request, is an undue burden on plaintiffs in this, or in any other, case.”
