Order permitting parties to use, discuss, & elicit testimony about a nonparty patient’s disclosed medical records; Health Insurance Portability & Accountability Act (HIPAA); Exception allowing disclosure of protected health information in judicial proceedings; 45 CFR § 164.512(e)(1); Qualified protective order; The physician-patient privilege; MCL 600.2157; Waiver of the privilege; The Elliott-Larsen Civil Rights Act (ELCRA)

The court held that the disclosure of a nonparty male patient’s medical information was permitted under the HIPAA’s judicial proceedings exception, and that he waived his physician-patient privilege. Thus, it affirmed “the trial court’s order granting plaintiff’s motion to permit the parties to ‘use, discuss, and elicit testimony’” about the male patient’s medical records. Plaintiff sued defendants for negligence and discriminatory denial of public services under the ELCRA based on her “claim that she was sexually assaulted by the male patient while hospitalized at” defendant-hospital. Defendants argued the trial court erred in granting her motion because HIPAA and the physician-patient privilege “protected disclosure of the male patient’s medical information and prohibit plaintiff’s use of the information in eliciting testimony from witnesses.” The court disagreed. It first determined that disclosure of the male patient’s “medical information was permitted under” § 164.512(e)(1). The trial court entered a stipulated protective order limiting the use of the documents to this case. Its later “written order on the motion limited use of the information to the instant litigation and provided that the information would be returned or destroyed after litigation is complete. This is sufficient to constitute a qualified protective order” under § 164.512(e)(1)(v). Thus, defendants’ disclosure of the “medical records was appropriate even considering the inconsistencies between the General Authorization, revocation, HIPAA Authorization, and affidavit all signed the same day.” HIPAA did not otherwise prohibit them from discussing his protected health information. As to the privilege, he executed the General Authorization, which “authorized ‘the disclosure and/or use of individually identifiable health information,’” and completed a HIPAA Authorization. The court found that defendants could not “unring the bell” as to his medical records. They “were already disclosed pursuant to the stipulated protective order.” In light of his “initial participation as a witness in the lawsuit and the relevance of his medical information to the issues being litigated, his attempt to reassert the privilege following the voluntary disclosure” was not sufficient “to bar their disclosure or use.” The court was also not persuaded by defendants’ assertion that his “waiver was not knowing or voluntary.”