April Health Care Law Report | Foster Swift

I recently heard from an attorney who is defending a personal injury case filed by one of my patients. The attorney wants a one-on-one meeting. Do I have to attend? If I want to cooperate, does HIPAA preclude the meeting absent my patient's written permission?

- Dr. Hall

Although it may be a healthcare provider's nightmare, it is routine for many defense attorneys to request face-to-face meetings with subsequent treaters after a patient files a lawsuit which pertains to their medical condition. Such requests may come in a workers' compensation, medical malpractice, or personal injury setting. The request is usually made because attorneys would rather informally meet and discuss a patient's condition before deciding whether to take the time for -- and go to the expense of -- a formal deposition.

Before the Health Insurance Portability and Accountability Act ("HIPAA") was enacted, Michigan courts consistently held that such ex parte meetings between physicians and attorneys were appropriate after a patient had filed suit which put her medical condition at issue. See, Domako v Rowe, 438 Mich 347; 475 NW2d 30 (1991). However, HIPAA contains language which protects disclosure of a patient's protected health information, which muddied the waters for a time. Recently, the Michigan Court of Appeals clarified the issue by deciding that an ex parte meeting between a physician and attorney is not a violation of HIPAA so long as an appropriate Qualified Protective Order is in place. Holman v Rasak, 281 Mich App 507, 761 NW2d 391 (2008). An ex parte meeting is one in which the attorney for only one of the parties is present.

If you wish to participate in such a meeting, HIPAA requires you to ensure certain precautions are in place before you discuss a patient's protected health information. Consider:

You do not have to attend a meeting with a lawyer unless you want to (or unless you are under subpoena). If you are more comfortable, you may have your own attorney present as well.

Find out if your patient has given written permission for the meeting. If so, you may proceed absent HIPAA concerns.

If your patient has not given written consent for the meeting, ask the attorney for a copy of the Qualified Protective Order. This document, signed by a judge, will allow you to talk freely about your patient's situation without fear of repercussion under HIPAA. In order to adequately protect you, the Order should specifically state that you and the attorney may conduct ex parte meetings even without the written consent of your patient. The Order should also contain a statement that the party requesting the meeting is prohibited from using or disclosing the patient's protected health information for any purpose not related to the litigation. Finally, the Order should require that any documentation or records that you turn over to the attorney must be either destroyed or returned to you at the conclusion of the litigation.

If you have questions about a requested meeting, subpoena, or Qualified Protective Order, contact your legal counsel for assistance.

Attorney Kirsten M. McNelly defends physicians and other healthcare providers in medical malpractice suits. If you have any questions about the appropriateness of ex parte communications with an attorney, please contact Kirsten McNelly at kmcnelly@fosterswift.com.

2009 Changes in Estate and Gift Tax

By: Anna K. Gibson, Esq.

The 2009 year brought increases in both the federal estate tax exclusion amount and the annual gift tax exclusion amount. These changes, summarized below, may eliminate or significantly reduce federal estate and gift tax liability for many clients.

Federal Estate Tax

Under federal tax law, each individual can transfer property at death free from federal estate tax up to the "estate tax exclusion amount" (also commonly referred to as the "applicable exclusion amount"). For decedents dying in 2009, the federal estate tax exclusion amount increased from $2 million to $3.5 million.

The federal estate tax is scheduled to disappear completely in 2010, and then return in 2011 with an estate tax exclusion amount of only $1 million. However, most commentators expect that Congress and President Obama will enact new legislation in 2009 to revise these dramatic changes to the federal estate tax. President Obama has previously supported retaining the 2009 federal estate tax exclusion amount of $3.5 million for future years.

Federal Gift Tax

Each year, an individual has the ability under the federal gift tax laws to gift a certain amount to others without incurring gift tax liability and without filing gift tax returns. This amount is referred to as "annual gift tax exclusion" and is indexed for inflation. In 2009, the Internal Revenue Service announced that the annual gift tax exclusion amount is increased from $12,000 to $13,000 per recipient.

An individual can gift up to the annual gift tax exclusion amount each year for an unlimited number of recipients. If married, both you and your spouse can each gift up to the annual gift tax exclusion amount each year. You are only liable for gift taxes if the total amount of annual gifts to a single recipient exceeds the annual gift tax exclusion amount.

In addition, an individual can gift a certain amount of property during his or her lifetime that exceeds the annual gift tax exclusion without incurring gift tax liability. This amount is referred to as the "lifetime gift tax exemption amount" and is currently $1 million. Unlike the estate tax exclusion amount, the lifetime gift tax exemption is not set to change in future years (except for periodic inflation adjustments). If used, this lifetime gift tax exemption amount offsets the estate tax exclusion amount available at death.

Please contact Anna K. Gibson if you have any questions about the impact of the increased estate tax exclusion amount or annual gift tax exclusion amount on your current estate plan.

Foster, Swift, Collins & Smith, P.C. is a 107-year old law firm with nearly 100 attorneys in five Michigan offices. The firm�s legal solutions are the result of experience, hard work, sound judgment and first rate professionals working cooperatively for the benefit of Foster Swift clients. The firm�s attorneys are members of the following client-centered practice groups: Administrative & Municipal � Banking, Finance & Real Estate � Business & Corporate � Commercial Litigation � General Litigation � Health Care � Employment, Labor & Benefits � Trusts & Estates � Workers� Compensation.

Foster, Swift, Collins & Smith, P.C. Health Care Law Report is intended for general information for our clients and friends. This report highlights specific areas of law. This communication is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

IRS Circular 230 Notice: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed in this communication.

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