Medical malpractice; Necessity of a notice condition in a qualified protective order (QPO) requiring disclosure of ex parte meetings; MCR 2.302(C); Szpak v Inyang; Sampson v Shorepointe Nursing Ctr (Unpub); Good cause; Health Insurance Portability & Accountability Act (HIPAA) (45 CFR § 164.512(e)(1)(v))

The court held that the trial court erred by including a notice condition in defendant’s QPO. Plaintiff sued defendant for medical-malpractice after she was injured in a fall at its assisted-living center. During discovery, defendant sought a QPO allowing it to conduct ex parte meetings with her healthcare providers. The trial court issued the QPO “with a condition requiring defendant to ‘disclose to [p]laintiff within 7 days of any such [ex parte] meetings who they have interviewed.’” The court agreed with defendant that the trial court failed to identify good cause to impose a notice condition upon the meetings, so it abused its discretion by adding the condition to the QPO. “Although plaintiff has presented substantial evidence that such a notice condition is commonplace in QPOs issued by the trial courts in Michigan, this Court has issued an unbroken line of opinions and orders concluding that such a notice condition is impermissible unless the trial court identifies case-specific facts that demonstrate such a notice condition is necessary.” The court noted that, as “in Szpak, plaintiff’s request for notice of meetings with her healthcare providers has no bearing on the disclosure of her health information, so ‘MCR 2.302(C) requires that the additional conditions be justified in their own right.’ Plaintiff’s claim that the notice condition was justified because it provides an efficient method for her to obtain information about the ex parte interviews is meritless. Despite general grievances about the discovery process, [she] has not articulated how she would suffer ‘undue burden or expense’ by using the standard discovery procedures to obtain information about ex parte interviews.” In addition, “Michigan law permits ex parte meetings of this nature, and a post-meeting notice condition is unrelated to dissemination of information in” such meetings. Further, defendant’s proposed QPO met § 164.512(e)(1)(v)’s requirements, so the addition of any notice condition was not required “to uphold the purpose of HIPAA.” Finally, plaintiff’s “purported justifications for the notice condition do not include any case-specific facts revealing a ‘specific fear’ of ‘annoyance, embarrassment, oppression, or undue burden or expense’ that would be ameliorated by a notice requirement.” Because she did not “establish good cause to impose the notice condition, the trial court abused its discretion” in imposing the “condition without offering any findings of fact to satisfy the ‘good cause’ standard in MCR 2.302(C).” While plaintiff offered “ample evidence that the inclusion of a notice requirement in QPOs is a common practice in the trial courts of this state, the standards prescribed in MCR 2.302(C) and refined by” the court’s case precedent left “no doubt that the common practice is unsustainable as a matter of law.” Vacated and remanded.