Professional Negligence Law Reporter

A Michigan appellate court held that a trial court had erred in imposing a qualified protection order (QPO) that included a notice condition.

Shirley Deluca sued Brownstown Assisted Living Center, alleging liability for injuries she sustained when another resident caused her to fall. During discovery, the defense requested that the trial court enter a QPO permitting the defense to conduct ex parte meetings with the plaintiff’s health care providers. The plaintiff responded that the defense should not be permitted to conduct any ex parte interviews but, if allowed to, should be required to provide prior notice to the plaintiff of any meetings. The trial court issued a QPO with a condition requiring the defendant to disclose the interviewee’s identity to the plaintiff within seven days of an ex parte meeting.

Vacating in part and remanding, the appellate court noted that a trial court may not impose a condition on an ex parte interview unless good cause has been established. Citing case law, the court added that generalized concerns are inadequate to establish good cause and that the party seeking imposition of the condition must identify case-specific facts supporting the proposed condition. Here, the court found that the plaintiff had not specified how she would suffer undue burden or expense by using standard discovery procedures to obtain information about the defendant’s ex parte interviews. The court concluded that the use of ordinary discovery tools to obtain such information did not impose an undue burden on the plaintiff.

Moreover, the plaintiff’s HIPAA concerns were unrelated to the post-meeting notice condition, the court found, adding that HIPAA allows—under certain conditions—the dissemination of protected health information pursuant to a QPO.

The court concluded that although the inclusion of a notice requirement in a QPO was common practice in the state’s trial courts, such a practice was unsustainable as a matter of law.

Citation: Deluca v. Brownstown Assisted Living Ctr., LLC, 2024 WL 5036298 (Mich. Ct. App. Dec. 6, 2024).