DAVID SZPAK V JOY INYANG
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID SZPAK and MICHELLE SZPAK,
Individually, and as Next Friend of ALEXA
SZPAK, a Minor,
FOR PUBLICATION
November 23, 2010
9:15 a.m.
Plaintiffs-Appellees/CrossAppellees,
v
No. 292625
Oakland Circuit Court
LC No. 2009-097937-NH
DR. JOY INYANG, M.D., DR. MICHAEL
FALZON, M.D., and HURON VALLEY
HOSPITALS, INC.,
Defendants/Cross-Appellants,
and
DR. B. NAJEM, M.D., and HURON VALLEY
PEDIATRICS, P.C.,
Defendants-Appellants.
Before: O’CONNELL, P.J., and BANDSTRA and MURRAY, JJ.
PER CURIAM.
Defendants1 appeal by leave granted2 the trial court’s order granting in part and denying
in part defendants’ motion for a qualified protective order in this medical malpractice action.
1
Defendants-appellants, Dr. B. Najem, M.D., and Huron Valley Pediatrics, P.C., actually filed
the application for leave to appeal, and defendants/cross-appellants, Dr. Joy Inyang, M.D., Dr.
Michael Falzon, M.D., and Huron Valley Hospitals, Inc., filed a cross-appeal raising the identical
issue raised by defendants-appellants. Defendants/cross-appellants had likewise filed a
concurrence with defendants-appellants’ motion in the trial court that is the subject of this
appeal. Accordingly, we will address the two claims together on appeal.
2
Szpak v Inyang, unpublished order of the Court of Appeals, entered October 16, 2009 (Docket
No. 292625).
-1-
Defendants argue that the trial court abused its discretion when it imposed certain conditions on
the protective order. We agree, and therefore reverse in part and vacate in part the qualified
protective order.
Defendants argue that where a qualified protective order is entered to ensure compliance
with the Health Insurance Portability and Accountability Act (“HIPAA”), 42 USC 1320d et seq.,
it was an abuse of discretion also to require that plaintiffs receive notice of, and an opportunity to
attend, ex parte interviews by defense counsel with plaintiff Alexa’s treating physicians.3
A trial court’s decision on discovery motion is reviewed for an abuse of discretion.
Holman v Rasak, 486 Mich 429, 436; 785 NW2d 98 (2010). Questions of statutory
interpretation are reviewed de novo as questions of law. Id.
The parties agree that the trial court is authorized to permit ex parte meetings with
witnesses, in the interests of efficient discovery. Our Supreme Court has recently affirmed this
position on facts very similar to the instant case. In Holman, the Court stated:
Ex parte interviews are permitted under Michigan law, and nothing in HIPAA
specifically precludes them. Because it is possible for defense counsel to insure
that any disclosure of protected health information by the covered entity complies
with [HIPAA] by making “reasonable efforts” to obtain a qualified protective
order, HIPAA does not preempt Michigan law concerning ex parte interviews.
[Holman, 486 Mich at 442; see also GP Enterprises v Jackson Nat’l Life Ins Co,
202 Mich App 557, 567; 509 NW2d 780 (1993) (ex parte interviews with treating
physicians are generally proper).]
Towards the end of its opinion, the Court concluded that, “[a] trial court retains its discretion
under MCR 2.302(C) to issue protective orders and to impose conditions on ex parte interviews.”
Holman, 486 Mich at 447-448. The Court in Holman, however, was not asked to consider the
validity of any actual conditions imposed on ex parte interviews.
MCR 2.302(C) provides, in relevant part:
On motion by a party or by the person from whom discovery is sought, and on
reasonable notice and for good cause shown, the court in which the action is
pending may issue any order that justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense . . . .
3
The protective order actually prohibited all ex parte contact with the treating physicians of
plaintiffs David Szpak and Michelle Szpak. The trial court has since dismissed the individual
claims of David and Michelle, leaving only the claims of Alexa, their daughter. As a result,
defendants’ challenge to Section II of the order concerning the physicians of David and Michelle
is now moot.
-2-
Thus, the issue to be resolved is whether there has been a demonstration of good cause requiring
the conditions imposed by the trial court on the proposed ex parte interviews, i.e., whether
implementation of Section I D (requiring defendants to give plaintiff’s attorney notice of the
time, date and locations of meeting) and Section I E (allowing plaintiff’s counsel to attend the
meetings) of the order was an abuse of discretion.
The protective order in this case was sought by defendants in an effort to comply with
HIPAA. See Holman, 486 Mich at 438-442 (discussing HIPAA requirements and Michigan
law). The first part of the protective order, and the portion sought by defendants, specifically
prohibits defendants from using or disclosing any health information acquired in the covered
interviews, as required by HIPAA. See 45 CFR 164.512(e)(1)(v). The additional conditions
imposed by the trial court—that plaintiffs’ counsel have notice and be present at the interviews—
were sought by plaintiffs only in response to appellants’ motion, and have no bearing on the
disclosure of health information. Thus, MCR 2.302(C) requires that the additional conditions be
justified in their own right.
Plaintiffs argued to the trial court that the treating physicians in this case could be subject
to intimidation “when confronted with an order permitting him or her to meet with defense
counsel.” Plaintiffs further argue on appeal that “[t]opics of conversation that could arise in an
ex parte conversation are subjects such as malpractice in general, the witness’s insurance
company, how premiums could rise against all doctors in the event of a verdict, mutual
acquaintances, just to name a few.” We observe that the specter of intimidation raised by
plaintiffs would be theoretically present in any medical malpractice case. Plaintiffs have not
identified any facts in this case supporting a specific fear that defense counsel would
“intimidate” the treating physicians during a voluntary ex parte interview. See Herald Co v Tax
Tribunal, 258 Mich App 78, 88-89; 669 NW2d 862 (2003) (protective order appropriate to
protect trade secrets); Bloomfield Charter Twp v Oakland Co Clerk, 253 Mich App 1, 35-36; 654
NW2d 610 (2002) (protective order proper where no demonstration that proposed discovery is
relevant). Further, plaintiffs have not argued that the interviews sought by defendants are not
relevant to the issues in this case, or that there is any specific danger of “annoyance,
embarrassment, oppression, or undue burden or expense.” MCR 2.302(C). They only argue that
there is a generalized danger of intimidation.
Thus, in the words of MCR 2.302(C), there has been no showing that “justice requires”
the conditions requested by plaintiffs and imposed by the trial court. Because the trial court’s
authority to issue a protective order is defined by MCR 2.302(C), the trial court abused its
discretion when it imposed the conditions within Section I D and I E of the order on ex parte
interviews with the treating physicians unrelated to compliance with HIPAA, or any related
privacy concerns, and in the absence of evidence to support a reasonable concern for
intimidation, harassment, and the like. Donkers v Kovach, 277 Mich App 366, 368; 745 NW2d
154 (2007) (error of law may lead to abuse of discretion).4
4
Defendants have not challenged any parts of the order other than Section I D and I E, except
Section II, which is already noted as now moot.
-3-
Reversed in part, vacated in part, and remanded for further proceedings. We do not retain
jurisdiction.
No costs, neither party having prevailed in full. MCR 7.219(A).
/s/ Peter D. O’Connell
/s/ Richard A. Bandstra
/s/ Christopher M. Murray
-4-
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