Deer Run Estates, LLC v. Hon Darren W. Peckler Judge, Mercer Circuit Court, Et Al ( 2015 )

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STACEY CALDWELL APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000456-OA
JEFFERSON CIRCUIT COURT NO. 09-CI-007369
HONORABLE A. C. McKAY CHAUVIN,
JUDGE, JEFFERSON CIRCUIT COURT APPELLEE
AND
DR. FRANK P. CASTRO,
D/B/A PALO ALTO SPINE, LLC REAL PARTY IN INTEREST
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
Litigants have historically been permitted to conduct ex parte' interviews
with fact witnesses. These interviews serve various purposes but are mainly
1 The law often attaches a negative connotation to communications labeled as
ex parte. See BLACK'S LAW DICTIONARY 597 (7th ed. 1999) ("ex parte communication: A
generally prohibited communication between counsel and the court when opposing
counsel is not present."). Our use of the phrase ex parte throughout this opinion is
devoid of those implications contrived from clandestine—and impermissible—
communications between an attorney and a judge or a party known to be represented
by counsel. Instead, we use this phrase in a manner that is true to the basic
definition of the Latin phrase, "from or on behalf of one side of the lawsuit," to refer to
a meeting between counsel and a fact witness without prior notification to opposing
counsel and the court. BRYAN A. GARNER, GARNER'S DICTIONARY OF MODERN LEGAL
USAGE 343 (3d ed. 2011). Other jurisdictions, as well as the parties and amici
presently before us, have routinely referred to these interactions as ex parte without
invoking the level of impropriety ordinarily associated with ex parte communications.
We do the same.
directed at investigating the facts of the case and curtailing litigation costs by
allowing litigants to gauge the usefulness of a witness's potential testimony by
interviewing the witness before paying for a discovery deposition.
Whether this time-honored method of informal discovery extends to the
plaintiff's treating physicians and what role the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA) plays in regulating these
interviews has been an issue across the country for some time. And the issue
has come before many of Kentucky's circuit courts and the federal courts in
both the Western and Eastern Districts of Kentucky. Today we decide
conclusively whether litigants in Kentucky may, and under what conditions,
engage in ex parte interviews with treating physicians.
In an original action before the Court of Appeals, Stacey Caldwell, the
plaintiff in the underlying medical-malpractice action, sought a writ of
prohibition preventing the trial court from enforcing its order permitting
counsel for Dr. Frank Castro, 2 the defendant in the underlying action, to
contact Caldwell's treating physicians ex parte. Importantly, no provision in
the trial court's order compelled any physician to have contact with Castro's
counsel or disclose any information, nor did it authorize disclosure of protected
health information; whether or not to disclose any information was left to the
treating physician's discretion. Before the Court of Appeals, Caldwell argued
that because she was entitled to confidentiality in her communications with
2 Dr. Castro practices for Palo Alto Spine, LLC.
2
her healthcare providers, the trial court's order permitting ex parte contact
with those providers was in error.
The Court of Appeals declined to issue a writ because it found Caldwell
did not have a right to confidentiality in her communications with her treating
physicians. As a result, the Court of Appeals concluded the trial court's order
was not erroneous.
Based on our review of Kentucky and federal law, we conclude that no
law inhibits litigants from seeking ex parte interviews with the opposing party's
treating physicians. But the disclosure of medical information during those
ex parte meetings is controlled by HIPAA. For disclosure to be permitted, the
party must first obtain a court order authorizing disclosure in a voluntary
ex parte interview. Upon review of the instant order, it is clear the trial court
declined to authorize ex parte disclosure of Caldwell's health information thus
failing to satisfy HIPAA. But because the trial court is explicit in its refusal to
authorize ex parte disclosures, we find it unnecessary to issue an extraordinary
writ.
I. FACTUAL AND PROCEDURAL HISTORY.
The underlying litigation stems from a discectomy Castro performed on
Caldwell. Caldwell had a long history of spinal problems predating the
procedure, but she alleges the surgery was unnecessary and negligently
performed. Caldwell claims she suffered painful nerve damage and restricted
mobility because of this surgery.
3
During the course of discovery and after obtaining Caldwell's medical
records, Castro moved the trial court to enter a qualified protective order
permitting him to make ex parte contacts with Caldwell's healthcare providers.
Following a hearing, the trial court concluded there is no bar prohibiting
Castro's counsel from contacting ex parte Caldwell's healthcare providers
because they are ultimately fact witnesses and the information they possess is
not subject to an evidentiary 'privilege. The trial court's order 3 limited the
scope of Castro's counsel's permissible ex parte contacts to those physicians
who treated Caldwell "for the injuries that are the subject matter of this
litigation" but expressly declined to authorize disclosure of Caldwell's health
information. The court's order also explicitly stated it was neither requiring
any physician to speak -with Castro nor compelling disclosure of any
information to Castro, noting the "treating physicians are free to accept or
decline counsel's request as they see fit."
Caldwell filed a petition for a writ of prohibition and a motion for
intermediate relief4 with the Court of Appeals. In her petition, Caldwell argued,
as she does now, she was entitled to a writ because the trial court's order
violated the physician-patient privilege, her right to confidentiality in her
communications with her doctors, and the order was not authorized by federal
3 The court's order, although entitled "Qualified Protective Order," is nothing of
the sort. The order does not mandate any disclosure and does not require any
protective measures to ensure the confidentiality of information discovered pursuant
to the order. Although it is a qualified protective order in name, the trial court's order
also fails to satisfy HIPAA's requirements for qualified protective orders as outlined in
45 C.F.R. 164.512(e)(1)(v).
4 See Kentucky Rules of Civil Procedure (CR) 76.36(4).
4
law. The Court of Appeals denied her motion for intermediate relief without
discussion. It also omitted analysis of the writ prerequisites and proceeded
directly to the merits of her allegation of error.
Upon reaching the merits, the Court of Appeals declined to issue a writ
and presented two main reasons for so holding. First, it concluded no
Kentucky law prohibits the trial court from authorizing ex parte
correspondence with nonexpert treating physicians. And second, the Court of
Appeals reasoned the trial court's order did not violate any right Caldwell may
have to privacy of her medical information because the order does not compel
any disclosure. The court declined to address the impact of HIPAA's privacy
regulations on Castro's ability to communicate ex parte with Caldwell's
physicians, deciding "the order of the trial court relied solely upon Kentucky
authority."
Caldwell appeals that denial to this Court as a matter of right. 5
II. ANALYSIS.
The issuance of a writ is an extraordinary remedy that is disfavored by
our jurisprudence. 6 We are, therefore, "cautious and conservative both in
entertaining petitions for and in granting such relief." 7
5 CR 76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of
right from a judgment or final order in any proceeding originating in the Court of
Appeals."); see also Ky. Const. § 115 ("In all cases, civil and criminal, there shall be
allowed as a matter of right at least one appeal to another court . . . .").
6 Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky.
2013).
7 Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).
5
A writ of prohibition may be granted upon a showing that (1) the
lower court is proceeding or is about to proceed outside of its
jurisdiction and there is no remedy through an application to an
intermediate court; or (2) that the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there
exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury will result if the petition is not
granted. 8
Caldwell makes no proper argument that the trial court was without
jurisdiction to enter the challenged discovery order. 9 She seeks the second
class of writ. And when seeking a writ of the second class, a petitioner must
first show she has no adequate remedy by appeal or otherwise. If this
requirement can be met, the petitioner must then show she will suffer great
injustice or irreparable harm absent the issuance of a writ. This has
consistently been defined as injury of a "ruinous nature." 0
The latter requirement is not absolute, however. In what has come to be
known as the "certain-special-cases exception," our precedent allows waiver of
the great injustice and irreparable harm element in cases where the instant
harm may not rise to the level of irreparable but a "substantial miscarriage of
justice will result if the lower court is proceeding erroneously, and correction of
8 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
9 Caldwell made a passing allegation that the trial court was acting outside its
jurisdiction in entering the allegedly erroneous discovery order. This argument is
presented for the first time in a footnote in Caldwell's reply brief. Aside from the
absurdity of arguing that a trial court lacks jurisdiction to enter a discovery order in a
pending civil case, Kentucky courts have declined to entertain arguments so
introduced. See Smith v. Commonwealth, 366 S.W.3d 399, 401 (Ky. 2012) (quoting
Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App. 1979) ("[T]he reply brief is not a device
for raising new issues . . . .")). Because this issue is not properly before us, we make
no further mention of it.
19 Bender, 343 S.W.2d at 801.
6
the error is necessary and appropriate in the interest of orderly judicial
administration." 11
Proof of the elements described above is a condition precedent to
contemplation of the merits underlying a writ petition. Strict adherence to
these prerequisites "is a practical and convenient formula for determining, prior
to deciding the issue of alleged error, if petitioner may avail himself of this
remedy. " 12 These strictures evince a reluctance to reach the merits of alleged
errors in writ proceedings. Indeed, the test that must be satisfied before the
Court may analyze the alleged error was designed expressly to limit "the
number of writ cases that proceed to the merits of the controversy" 13 because
writ proceedings "necessitate an abbreviated record which magnifies the
chance of incorrect rulings that would prematurely and improperly cut off the
rights of litigants." 14 It bears repeating that the issuance of a writ is inherently
discretionary. Even if the requirements are met and error found, the grant of a
writ remains within the sole discretion of the Court. 15
Because of the discretion inherent in granting a writ, we review the
decision of the Court of Appeals for an abuse of discretion. When questions of
law or findings of fact made by the Court of Appeals en route to their ultimate
decision are raised, however, we review de novo and for clear error,
11 Id.
12 Id.
13 Cox v. Braden, 266 S.W.3d 792, 796 (Ky. 2008).
14 Interactive Media Entm't & Gaming Ass'n v. Wingate, 320 S.W.3d 692, 695
(Ky. 2010) (internal quotation marks omitted).
15 Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007).
7
respectively. The Court of Appeals in the present case has omitted analysis of
the writ prerequisites in its opinion denying Caldwell's petition for a writ,
opting instead to proceed directly to the merits. 16 So we review the availability
of the writ remedy de novo.
Caldwell's argument in favor of her entitlement to an extraordinary writ
is grounded in state-law principles. She claims the trial court's order
permitting Castro's counsel to communicate ex parte with her treating
physicians was error because: communications with treating physicians are,
or should be, treated as privileged; the American Medical Association's Code of
Medical Ethics carries the force of law in prohibiting nonconsented disclosure
of confidential information; Kentucky case law prohibits trial courts from
authorizing defendant's counsel to communicate with a plaintiff's treating
physicians ex parte; and the trial court's order is "confusing and misleading."
Caldwell also argues, at least initially, that HIPAA does not create an
entitlement to ex parte contacts for defendants. It is not until the last page of
her reply brief that Caldwell makes a one-paragraph argument that HIPAA
prohibits the ex parte meetings she seeks a writ to prevent. The amicus on her
behalf, the Kentucky Justice Association, took up the HIPAA argument and
presented us with a comprehensive argument explaining why, in its view, the
trial court's order violates HIPAA. Castro, of course, refutes Caldwell's
16 It is worth noting that this practice has support in our writ jurisprudence.
Our precedent authorizes proceeding directly to the merits of a dispute when they are
uncomplicated and doing so would promote the end of "judicial economy in limiting
the breadth of analysis appellate courts undertake when considering writs." So. Fin.
Life Ins. Co. v. Combs, 413 S.W.3d 921, 927 n.20 (Ky. 2013). The Court of Appeals
used that approach, but we choose the more traditional analytical approach.
8
allegations of error; and although he presents a capable argument regarding
HIPAA's impact on ex parte communications with nonparty treating physicians,
Kentucky Defense Counsel, Inc., supplied an amicus brief buttressing Castro's
cause regarding HIPAA.
We have often held discovery disputes satisfy the no-adequate-remedy-
by-appeal requirement. Cases so holding often focus on the inability of
information disclosed under an erroneous discovery order to be recalled. 17 In
those cases, "[t]he injury suffered . . . will be complete upon compliance with
the order and such injury could not thereafter be rectified in subsequent
proceedings in the case.” 18
This case is no different. Although Caldwell's main objection is with the
form of discovery permitted by the trial court's order, the gravamen of her
complaint is that through ex parte discovery—which, by definition, takes place
beyond the watchful eye of opposing counsel or the court—confidential or
otherwise undiscoverable information, or information protected by federal law,
may be disclosed without Caldwell's consent and to her detriment. If that were
to happen—and we must presume it will happen when assessing the
17 See, e.g., Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004)
("[T]here will rarely be an adequate remedy on appeal if the alleged error is an order
that allows discovery."); Bender, 343 S.W.2d at 802.
18 Bender, 343 S.W.2d at 802.
9
availability of the writ remedy 19—Caldwell would be left without an avenue of
appellate recourse to rectify her grievance. 20
We also find this issue to satisfy the certain-special-cases exception
because its resolution is necessary to ensure the orderly administration of
justice in the Commonwealth. This exception has been reserved for "first-
impression questions[] bearing importantly on the public administration of the
law or on a party's fundamental rights." 21 We find this to be a case of the
former and conclude it is particularly suited to application of this exception
because of the unique procedural posture in which this issue typically will
arise.
This case presents our appellate courts with their first opportunity to
address this issue, 22 even though the bulk of HIPAA's privacy regulations were
19 See Commonwealth, Cabinet for Health and Family Servs. v. Chauvin,
316 S.W.3d 279, 283 (Ky. 2010) ("In applying this threshold test, the petitioner's
allegations are assumed to be true.").
See Bender, 343 S.W.2d at 802 ("Once the information is furnished it cannot
20
be recalled."); Young v. Carran, 289 S.W.3d 586, 588 (Ky.App. 2008) ("This court has
recently held that HIPAA does not create a state-based private cause of action for
violations of its provisions. We also note that federal courts have uniformly held that
HIPAA does not create a private cause of action even at the federal level.") (citations
omitted).
We except from this conclusion Caldwell's argument citing the "confusing
and misleading" nature of the challenged order. Caldwell did have an adequate
remedy available to rectify this issue. As the Court of Appeals recognized, "a motion
for clarification in the trial court was an available and adequate remedy that precludes
extraordinary relief." We agree with the Court of Appeals and conclude that a writ is
not available to Caldwell on those grounds.
21 Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 349 (Ky. 2014).
22 A similar claim was raised before, but the Court of Appeals concluded that
the plaintiff's allegation "that [her treating physician's] ex parte conversations with [the
defendant] were violations of both HIPAA and the Kentucky Rules of Medical Ethics"
was not timely raised. See Miller v. Jewish Hosp. Healthcare Servs., Inc., 2004-CA-
10
promulgated nearly fifteen years ago. 23 Our inability to address this issue
before today notwithstanding, it has been percolating through state courts, 24
federal district courts, 25 and academic circles 26 for a decade. And the issue has
arisen in the trial courts of the Commonwealth. The parties have provided
citation to Kentucky courts that have struggled to address this exact issue in
discovery orders.
Discovery disputes, as a general matter, come before this Court nearly
always via writ petitions. The very nature of informal discovery is likely to
increase this trend because restrictions on ex parte communications are even
less likely to be challenged on appeal once final judgment is reached. It stands
to reason that the only manner in which this issue may reach this Court is
through a writ petition. We find it necessary, therefore, to reach the merits of
this issue to ensure that the decisions of our trial courts concerning ex parte
contacts with treating physicians comport with Kentucky and federal law; 27
001832-MR, 2005 WL 2469688 (Ky.App. Oct. 7, 2005). This Court denied
discretionary review.
23 See Standards for Privacy of Individually Identifiable Health Information,
65 Fed.Reg. 82,462-01 (Dec. 28, 2000) (to be codified at 45 C.F.R. pts. 160 8s 164).
24 See, e.g., State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. 2010)
(en banc); Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007).
25 See, e.g., Bayne v. Provost, 359 F. Supp. 2d 234 (N.D.N.Y 2005); Nat'l Abortion
Fed'n v. Ashcroft, 2004 WL 292079 (N.D. Ill. Feb 6, 2004).
26 See, e.g., Joseph Regalia 85V. Andrew Cass, Navigating the Law of Defense
Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP. HEALTH L. 85 POL'Y
35 (2015); Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten
Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating
Physicians?, 75 UMKC L.Rev. 499, 500 (2006).
27 To be sure, this is not to imply that writ petitions will satisfy the certain-
special-cases exception simply because they concern a discovery matter. To the
contrary, most discovery disputes concern the application of settled principles of law
11
otherwise, those decisions may continue to evade appellate review. Caldwell's
instant petition presents a claim for which a writ is an appropriate remedy at
this Court's discretion pending an analysis of the merits. 28
1
Turning to the merits of Caldwell's writ petition, we will first 'address
HIPAA's impact because, as we discuss below, the HIPAA analysis necessarily
subsumes the state-law arguments championed by Caldwell.
A. HIPAA Does not Prohibit Ex Parte Interviews with Treating Physicians,
but it Does Regulate the Protected Health Information to be Disclosed
in Ex Parte Interviews.
Congress enacted HIPAA with the primary purpose of making health
insurance more "portable" to prevent the denial of insurance coverage for
preexisting conditions when employees change jobs and, in so doing, change
health-insurance providers. 29 As part of HIPAA's expansive reform, Congress
charged the Secretary of the United States Department of Health and Human
Services (HHS) with promulgating regulations "with respect to the privacy of
individually identifiable health information" if Congress had not done so three
years after HIPAA's enactment. 30 When Congress failed to act, HHS adopted,
at the discretion of capable trial judges. This case is distinguished from run-of-the-
mill discovery writs because if we decline to reach the merits of this issue, trial courts
will be left with no precedential guidance going forward.
28See Commonwealth v. Peters, 353 S.W.3d 592, 596 (Ky. 2011) (concluding the
special-cases exception applied where "the issue in the present case has far-reaching
implications regarding pretrial procedure in the Commonwealth").
29 See Arons, 880 N.E.2d at 839-40 ("Congress enacted HIPAA principally to
increase the portability and continuity of health insurance and to simplify
administrative procedures so as to reduce health care costs.").
30 Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L.
No. 104-191, § 264(c)(1), 110 Stat. 1936, 2033-34.
12
after notice and public comment, privacy regulations ensuring patients' privacy
as medical records began their move to storage in a digital format. 31
The cornerstone of HIPAA's privacy rule presents a broad prohibition on
the disclosure of medical information, providing that "[a] covered entity or
business associate may not use or disclose protected health information,
except as permitted or required by this subpart." 32 A covered entity is defined
to include health plans; health care clearinghouses; and health care providers,
such as physicians and hospitals. 33 Protected health information includes, with
exceptions irrelevant here, "individually identifiable health information"
transmitted or maintained in whatever form or medium. 34 Health information
includes information "whether oral or recorded in any form or medium" that
pertains to the physical health of an individual. 35
HIPAA provides for mandatory disclosure of protected health information
by a covered entity under only two circumstances: (1) upon a request by an
individual for her own health information or (2) when requested by the
Secretary of HHS to investigate HIPAA compliance. 36 Permissible uses and
disclosures of protected health information are more numerous and reside in
31 See 65 Fed.Reg. 82,462-01 (codified at 45 C.F.R. pts. 160 86 164).
32 45 C.F.R. § 164.502(a).
33 45 C.F.R. § 160.103.
34 Id.
35 Id.
36 45 C.F.R. § 164.502(a)(2).
13
45 C.F.R. 164.502(a)(1). 37 Among the permissible disclosures authorized by
HIPAA, is the "litigation exception," which permits disclosure of protected
health information "in the course of any judicial or administrative proceeding"
either "[i]n response to an order of a court of administrative tribunal" or "[i]n
response to a subpoena, discovery request, or other lawful process," so long as
additional safeguards are met. 38
Noticeably absent from the sea of HIPAA privacy regulations is any
mention of ex parte communications between counsel and a covered entity. 39
In fact, the privacy rule does not purport explicitly to regulate the permissibility
of ex parte communications or interviews as an informal discovery too1. 4° But
the absence of express reference to ex parte interviews does not render HIPAA
inapplicable to regulate such contacts. Because HIPAA, by its terms, applies to
the oral disclosure of health information, it has routinely been held that the
37 See 65 Fed.Reg. 82,462, 82,657 ("We note that nothing in the [privacy] rule
requires covered entities to act on authorizations that they receive, even if those
authorizations are valid. A covered entity presented with an authorization is permitted
to make the disclosure authorized, but is not required to do so.").
38 45 C.F.R. § 164.512(e)(1)(i)-(ii).
39 See Bayne, 359 F. Supp. 2d at 240 ("Absent within the four corners of the
relevant rules and regulations and the enabling statute is any mention of the ex parte
interview of a health provider, such as whether to prescribe or proscribe such
actions . . . .").
4° See Smith v. Am. Home Prods. Corp. Wyeth Ayerst Pharm., 855 A.2d 608, 622
(N.J Super. 2003) ("Nowhere in HIPAA does the issue of ex parte interviews with
treating physicians, as an informal discovery device, come into view. The court is
aware of no intent by Congress to displace any specific state court rule, statue or case
law . . . on ex parte interviews."); Joseph Regalia 86 V. Andrew Cass, Navigating the
Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP.
HEALTH L. 86 POIN at 48. ("[N]either the Act, nor its legislative history, expressly
prohibits defense counsel ex parte interviews.").
14
disclosure of protected health information in ex parte interviews falls within the
ambit of HIPAA. 41
The divergence of judicial opinion focuses on what impact HIPAA and its
litigation exception have on the continued viability of ex parte contacts with
treating physicians. 42 Some courts have concluded, and Caldwell and her
amicus have argued, that the judicial exception is wholly inapplicable to
informal ex parte discovery because its covert nature renders it outside "the
course of any judicial or administrative proceeding," which is a prerequisite for
disclosure under that section. The contrary analysis, promoted by Castro and
his amicus, reasons that HIPAA does not prohibit ex parte interviews with
treating physicians, it "merely superimposes procedural prerequisites" to
authorize disclosure of protected health information.
The leading case espousing the former position is State ex rel. Proctor v.
Messina, decided by the Supreme Court of Missouri. 43 In that case, the court
narrowly defined the litigation exception's leading language: "in the course of a
judicial . . . proceeding." 44 As a result, the court concluded that disclosure
41 See, e.g., Messina, 320 S.W.3d at 150 ("This federal regulation's use of the
term oral communication clearly includes ex parte 'oral' communications with a
physician . . . .").
42 Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off
More Than it Can Chew By Prohibiting Ex parte Communication With Treating
Physicians?, 75 UMKC L.Rev. at 500 ("Whether HIPAA truly does preclude defense
attorneys from conducting ex parte interviews with treating physicians has yet to be
concretely settled in jurisdictions that have traditionally allowed ex parte
communications. . . . Unfortunately, no two jurisdictions seem to have found a
uniform line of reasoning with regard to answering this question.").
43 320 S.W.3d 145 (2010) (en banc).
44 Id. at 156.
15
under that exception "must be under the supervisory authority of the court
either through discovery or through other formal court procedures." 45 Because
the Missouri Rules of Civil Procedure do not provide a mechanism for courts to
oversee ex parte communications, the court held 45 C.F.R. § 164.512(e), which
permits disclosures in the course of judicial proceedings, does not apply to a
meeting for ex parte communications." 46
The opposing viewpoint may be found in the Court of Appeals of New
York's decision in Arons v. Jutkowitz. 47 The court in Arons concluded that "the
Privacy Rule does not prevent this informal discovery from going forward, it
merely superimposes procedural prerequisites." 48 Those procedural
prerequisites, the court explained, include satisfying one of the two prongs of
the litigation exception in order to permit disclosure of protected health
information by the covered entity. 49 This reasoning has been adopted by the
Supreme Court of Michigan, holding that ex parte interviews were permitted
under HIPAA and disclosure of protected health information permitted so long
as the second prong of the litigation exception was satisfied by provision of
"satisfactory assurance" that efforts have been made to obtain a qualified
protective order. 80
45 Id.
46 Id. at 157.
47 880 N.E.2d 831 (N.Y. 2007).
48 Id. at 842.
49 Id.
50Holman v. Rasak, 785 N.W.2d 98, 105-08 (Mich. 2010); 45 C.F.R.
§ 164.512(1)(e)(ii)(B) ("A covered entity may disclose protected health information in
16
We find more persuasive the New York court's position. We do not define
"in the course of any judicial . . . proceeding" as narrowly as the Messina court
in light of the Secretary of HHS's commentary in the Federal Register
pertaining to 45 C.F.R. § 164.512, which explains the Privacy Rule was "not
intended to disrupt current practice whereby an individual who is a party to a
proceeding and has put his or her medical condition at issue will not prevail
without consenting to the production of his or her protected information." 51
ViewngHIPA'sprvacyeultion"mrspe[ing]ocdural
prerequisites" over informal ex parte discovery is the most appropriate
analytical approach. If a party satisfies the superimposed procedural
prerequisites by fulfilling the litigation exception's requirement, the resulting
ex parte contact has been drawn well within "the course of [the] judicial .. .
proceeding" as required by HIPAA.
Before moving on, it is worth taking a close look into the procedural
prerequisites imposed by HIPAA. For an ex parte interview with a treating
physician to comply with HIPAA, it must fall within the litigation exception.
The text of this provision reads:
(1) Permitted disclosures. A covered entity may disclose
protected health information in the course of any judicial or
administrative proceeding:
the course of any judicial . . . proceeding: In response to a subpoena, discovery
request, or other lawful process that is not accompanied by an order of a court or
administrative tribunal, if: The covered entity receives satisfactory assurance . . . from
the party seeking the information that reasonable efforts have been made by such
party to secure a qualified protective order . . . .").
51 65 Fed. Reg. 82,462, 82,530.
17
(i) In response to an order of a court or administrative
tribunal, provided that the covered entity discloses
only the protected health information expressly
authorized by such order; or
(ii) In response to a subpoena, discovery request, or other
lawful process, that is not accompanied by an order of
a court or administrative tribunal, if:
(A) The covered entity receives satisfactory
assurance, as described in paragraph (e)(1)(iii) of
this section, from the party seeking the
information that reasonable efforts have been
made by such party to ensure that the
individual who is the subject of the protected
health information that has been requested has
been given notice of the request; or
(B) The covered entity receives satisfactory
assurance, as described in paragraph (e)(1)(iv) of
this section, from the party seeking the
information that reasonable efforts have been
made by such party to secure a qualified
protective order that meets the requirements of
paragraph (e)(1)(v) of this section. 52
Where our analysis differs from that of the courts cited above comes in
our definition of the emphasized language "or other lawful process." Both
Arons and Holman defined this phrase broadly enough to encompass an
ex parte interview and held that compliance with this second prong—providing
"satisfactory assurance" that the subject of the protected health information
was notified of the request or that a qualified protective order had been
sought—was adequate to meet HIPAA's superimposed procedural prerequisites.
We do not define lawful process so broadly.
52 45 C.F.R. § 164.512(e)(1)(i)-(ii) (emphasis added).
18
We typically define words according to their ordinary meanings when
interpreting statutes, but that general rule yields when a word or phrase has a
technical meaning within the law. 53 And the latter is the case here. Black's
Law Dictionary defines process as "[t]he proceedings in any action or
prosecution," or a "summons or writ, esp. to appear or respond in court." 54
process as defined above is also termed Thisentrycoludbghe
legal process.
We find the second definition of process to be applicable here because its
definition must be informed by the items that precede it. Defining lawful
process as "a summons or writ, esp. to appear or respond in court" is in
keeping with the general tenor of that section that also includes subpoenas and
discovery requests. The common-sense definition of lawful process—any action
that is not in violation of law—is too far-reaching when considering the balance
of the provision. Applying this definition of lawful process, we are constrained
to conclude that ex parte interviews do not fall within this strict definition of
lawful process. Even though we have concluded that ex parte interviews are
conducted within the course of a judicial proceeding, they are still decidedly
informal and entirely voluntary, unbefitting of the designation of lawful process
ascribed to formal discovery tools. Therefore, we hold that protected health
53 St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 535 (Ky. 2011) (quoting
Baker v. White, 65 S.W.2d 1022, 1024 (Ky. 1933) ("[I]n the interpretation and
construction of statutes, words and phrases employed by the lawmaking body must be
given their plain and ordinary meaning according to popular usage, unless they have
acquired a technical sense, in which event, they will be given such accepted technical
meaning.").
54 BLACK'S LAW DICTIONARY 1222 (7th ed.)
19
information may only be disclosed under HIPAA's litigation exception if the
exception's first prong is satisfied by order of the trial court.
This interpretation of the litigation exception is also consistent with our
reliance on trial courts as gatekeepers of discovery 55—even informal discovery,
when appropriate. Under our construction of the litigation exception, for the
ex parte disclosure of protected health information to comport with HIPAA, a
(
party must first seek authorization from the trial court. If we were to adopt the
application of the litigation exception as contemplated in Arons, disclosure of
protected health information would be permitted under HIPAA, yet, still within
the discretion of treating physicians upon counsel's provision of "satisfactory
assurance" that: "reasonable efforts" have been made to notify the subject of
the protected health information of the request; or a qualifying protective order
has been sought. 56 Notice need not have been achieved nor a qualified
protective order obtained to satisfy the second prong of the litigation exception
as construed by Arons—"sufficient assurance" of "reasonable efforts" to provide
notice or merely seeking a qualified protective order would suffice. Indeed,
Castro argues he has met this low standard by obtaining the order at issue,
even though by its own terms the order withholds authorization for the
disclosure of protected health information and does not meet the required
55 Primm v. Isaac, 127 S.W.3d 630, 634 (Ky. 2004) ("Generally, control of
discovery is a matter of judicial discretion.").
56 45 C.F.R. § 165.512(e)(1)(ii)(A)-(B); Arons, 880 N.E.2d at 842 ("As a practical
matter, this means that the attorney who wishes to contact an adverse party's treating
physician must first obtain a valid HIPAA authorization or a court of administrative
order; or must issue a subpoena, discovery request or other lawful process with
satisfactory assurances relating to either notification or a qualified protective order.").
20
protective standards outlined in 45 C.F.R. § 165.512(e)(1)(v). To interpret the
litigation exception as allowing disclosure of protected health information
under the second prong in contravention of an order declining to authorize
disclosure under the first prong undercuts the discretion vested in trial courts.
We conclude HIPAA does not prohibit ex parte interviews, but its
strictures do regulate disclosure of protected health information during their
course. We further hold HIPAA's procedural prerequisites to disclosure of
protected health information may only be satisfied by order of a court or
administrative tribunal 57 because ex parte interviews do not come within the
meaning of lawful process as used in 45 C.F.R. § 165.512(e)(1)(ii).
But our analysis does not end here. HIPAA's privacy rule contains a
preemption clause whereby any "contrary" provision of state law is preempted
absent the application of an enumerated exception. 58 State law is "contrary" to
HIPAA "only if it would be impossible for a covered entity to comply with both
the state requirement and the Rule, or the former is an obstacle to
accomplishing the full purposes and objectives of HIPAA's 'administrative
simplification' provisions." 59 But if a "contrary" law requires a more stringent
standard of privacy, HIPAA's preemption provisions are inapplicable and state
law controls. So we must undertake an analysis of Kentucky law to determine
what law controls the instant dispute.
57 See 45 C.F.R. § 164.512(e)(1)(i).
58 45 C.F.R. § 160.203 (pertaining to the preemptive effect of HIPAA's
regulations).
Arons, 880 N.E.2d at 841-42 (citing 45 C.F.R. § 160.202).
21
B. Kentucky Law Places no Restrictions on Voluntary Ex Parte Interviews
with Nonexpert Treating Physicians.
There is a dearth of Kentucky law dealing with litigants' ability to confer
ex parte with nonparty fact witnesses. And the cases that do broach this topic
do so upon the allegation that an ex parte contact was rendered impermissible
only by way of some express rule. 60 But what we can glean from those cases is
that their analysis begins—without fail—with the presumption that ex parte
contacts with willing fact witnesses are permissible absent express limitation.
Although these contacts are not mentioned in our civil rules pertaining to
discovery, 61 those rules are not meant to be exhaustive and do not express any
intent to foreclose the "time honored" 62 tool of informal discovery that is the
ex parte interview. 63 Also, to disallow parties equal access to an effective and
inexpensive method of establishing operative facts would conflict with the
60 See, e.g., Shoney's, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994) (finding ex parte
contacts between plaintiff's counsel and defendant's managerial employees to be
impermissible only because of the application of Supreme Court Rule (SCR) 3.130-4.2
prohibiting counsel to contact a party represented by counsel unless authorized to do
so); Hilliard v. Commonwealth, 158 S.W.3d 758 (Ky. 2005) (holding use of subpoena
power to compel a witness's appearance for an ex parte interview impermissible as on
abuse of subpoena power, not because the ex parte contact itself was impermissible);
see also Radford v. Lovelace, 212 S.W.3d 72, 82 (Ky. 2006) overruled on other grounds
by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009) ("It is important for us to
remember that both sides have the right to interview witnesses before trial.")
(quotation marks omitted).
61 See CR 26-37.05.
62
Angela T. Burnette 8v D'Andrea J. Morning, HIPAA and Ex parte Interviews—
The Beginning of the End?, J. HEALTH & LIFE SCI. L. 73, 77 (April 2008).
63 See Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991) ("The omission of
[ex parte] interviews from the court rules does not mean that they are prohibited,
because the rules are not meant to be exhaustive. Their absence from the court rules
does indicate that they are not mandated and that the physician cannot be forced to
comply, but there is nothing in the court rules precluding an interview if the physician
chooses to cooperate.") (citation omitted).
22
purpose our civil rules were meant to serve. 64 So we begin our analysis of
Kentucky law as it pertains to ex parte communications with treating
physicians by. accepting the same premise impliedly accepted in our precedent
and by the parties in the present case: voluntary ex parte contacts with fact
witnesses, are a permissible form of informal discovery absent some limitation
found outside our discovery rules.
Caldwell argues such a limitation prohibiting ex parte communications
with treating physicians may be derived from multiple sources of Kentucky law.
She first alleges the existence of a physician-patient privilege operates to limit
the viability of ex parte communications with treating physicians, or,
alternatively, that these situations should be treated as if a privilege does exist.
Next, she claims that the American Medical Association's Code of Medical
Ethics, adopted by the Kentucky State Board of Medical Licensure under its
statutory authority, carries the force of law in prohibiting nonconsented
disclosure of confidential information. Lastly, she argues that Kentucky case
law prohibits defendants from contacting ex parte nonparty treating
physicians.
64 Naive v. Jones, 353 S.W.2d 365, 367 (Ky. 1961) ("The civil rules prescribe a
practical pattern for the conduct of litigation and the effective administration of
justice.") (emphasis added); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C.
1983) ("As a general proposition, however, no party to litigation has anything
resembling a proprietary right to any witness's evidence."); see also Langdon v.
Champion, 745 P.2d 1371, 1375 n.8 (Alaska 1987) (I'D) disallow a viable, efficient,
cost effective method of ascertaining the truth because of the mere possibility of
abuse, smacks too much of throwing out the baby with the bath water.").
23
1. Kentucky Does not Recognize a Physician-Patient Privilege, and We
Decline to Act as Though One Does Apply Here.
Caldwell's first argument—that her communications with her physician
are privileged and thereby protected from ex parte disclosure under Kentucky
law—is disingenuous at best. This argument runs headlong into decades of
precedent and ignores the unambiguous text of our rules of evidence pertaining
to privilege. 65
For better or worse, our jurisprudence has been unwavering in its
rejection of the patient-physician privilege. 66 We see no reason to engage in a
lengthy analysis of this settled issue of law. All privileges, unless otherwise
created by statute, 67 are explicitly stated in our rules of evidence. The
physician-patient privilege is conspicuously absent from those provisions. 68
69 We cannot Andourcmlawiteognzsuchaprivl.
articulate it more clearly than the late Justice Keller did in his concurrence in
Stidham v. Clark, so we will not attempt to: "[No testimonial privilege exists in
65 KRE 501-11.
66 See, e.g., Stidham v. Clark, 74 S.W.3d 719, 729 (Ky. 2002) (Keller, J.,
concurring); H.H. Waegner & Co. v. Moock, 197 S.W.2d 254, 256 (Ky. 1946); Boyd v.
Winn, 150 S.W.2d 648, 650 (Ky. 1941); Louisville & N.R. Co. v. Crockett's Adm'x,
24 S.W.2d 580, 583 (Ky. 1930).
67 Commonwealth, Cabinet for Health and Family Servs., 316 S.W.3d at 284
("Kentucky evidentiary rules recognize the ability of the legislature to control their
contents, presumably including privileges, limited only by section 116 of the Kentucky
Constitution.").
68 See KRE 501-11.
69 Boyd, 150 S.W.2d at 450 ("At common law neither the physician nor the
patient could claim the privilege of refusing to disclose confidential communications
between them in the course of the physician's attendance upon or treatment of the
patient in a professional capacity.").
24
Kentucky for communications made between a patient and physician for the
purpose of medical treatment." 70
Having found no privilege to exist, Caldwell argues, in the alternative,
that we should nonetheless treat her communications with her physicians as
though they are privileged. We readily accept that the communications
between a patient and her physician are sensitive in nature. That said, our
court system has operated relatively smoothly since its inception without the
privilege Caldwell seeks. We have heretofore not identified a cognizable right to
a privilege in medical communications and again decline to do so today.
It is high time litigants abandon this tired argument. Our disinclination
to recognize a physician-patient privilege or to apply the faux privilege that
Caldwell argues for in the alternative is well documented. Any change that will
see a physician-patient privilege recognized in Kentucky will come by way, of a
change to our rules of evidence or through the legislature's authority to create
privileges recognized in Stidham.
2. The American Medical Association's Code of Medical Ethics Does not
Carry the Force of Law to Render Ex Parte Contacts with Physicians
Impermissible.
Caldwell next argues that the confidentiality provisions contained in the
American Medical Association's Code of Medical Ethics guarantees her right to
confidentiality because the Kentucky Board of Medical Licensure adopted the
Code of conduct under authority granted by statute and also possesses
statutory authority to levy punishment for ethical violations.
70 Stidham, 74 S.W.3d at 729 (Keller, J. concurring).
,
25
The Kentucky Board of Medical Licensure is granted statutory authority
to "promulgate a code of conduct governing the practice of medicine and
osteopathy, which shall be based upon generally recognized principles of
professional conduct." 71 The Board is also statutorily afforded the concomitant
authority to discipline practitioners within its purview for ethical violations. 72
To satisfy its statutory grant of authority, the Board adopted the
AMA Code of Medical Ethics. The provision of the Code relevant to the instant
proceedings reads:
Confidentiality. The information disclosed to a physician during
the course of the relationship between physician and patient is
confidential to the greatest possible degree. The patient should feel
free to make a full disclosure of information to the physician in
order that the physician may most effectively provide needed
services. The patient should be able to make this disclosure with
the knowledge that the physician will respect the confidential
nature of the communication. The physician should not reveal
confidential communications or information without the expresS
consent of the patient, unless required to do so by law. 73
This provision clearly creates a professional duty that requires healthcare
providers to maintain the confidentiality of patient information. But Caldwell
overstates the weight of the Code of Medical Ethics. It is true that the Code
was promulgated under statutory authority and that violations of the Code are
71 Kentucky Revised Statutes (KRS) 311.565(1)(j).
72 KRS 311.595(9), (16).
73 American Medical Association, Council on Ethical and Judicial Affairs, CODE
OF MEDICAL ETHICS § 5.05 (1994). Castro and Amicus Curiae Kentucky Defense
Counsel, Inc., note that the quoted provision, the one relied on by Caldwell, is an
outdated version of this section. This is correct; but the updated version is
substantially the same as the one relied upon by Caldwell, and the amendment does
not affect out analysis. See American Medical Association, Council on Ethical and
Judicial Affairs, CODE OF MEDICAL ETHICS § 5.05 (2007).
26
punished by the Board under statutory authority. But that tangential
statutory basis is insufficient to give the Code the force of law and create an
all-encompassing right to confidentiality by patients.
Indeed, other ethical codes policing the medical community—even one
adopted jointly with the Kentucky Bar Association—have been held to lack the
weight of law. 74 "The Code professes to be an ethical guide, not an authority
binding the courts." 75 We are not alone in our conclusion that ethical
standards levied within the medical community are not binding on courts. 76
Furthe,counsel'abityosekanxprtein vwithapysicanboud
by the Code does not prevent the physician from abiding by his professional
duty of confidentiality.
A physician's ethical duty of confidentiality, even if promulgated by a
professional body under statutory authority, does not carry the weight of law to
limit a litigant's ability to engage in ex parte interviews with physicians.
Admittedly, the ethical duty may restrain the physician's willingness to agree to
such an interview; but it in no way prohibits a party to litigation from
requesting one.
74 Davenport v. Ephraim McDowell Mem. Hosp., 769 S.W.2d 56, 62 (Ky.App.
1988).
75 Id.
75 Bryant v. Hilst, 136 F.R.D. 487, 492 (D. Kan. 1991) ("The court finds the code
of ethics inapplicable to the issues before the court. First, it is not binding law.");
Bryson v. Tillinghast, 749 P.2d 110, 114 (Okla. 1988) ("[E]thical standards are
aspirational in nature and not enforceable by law.").
27
3. Kentucky Case Law Does not Preclude Litigants from Interviewing
Ex Parte Treating Physicians.
For her last argument, Caldwell cites Geary v. Schroering 77 as the
preeminent Kentucky case barring ex parte contact with treating physicians.
As with her previous state-law arguments, Caldwell again overstates the scope
of the law she cites.
In Geary, the trial court ordered the personal-injury plaintiff to sign a
blank medical authorization allowing the "unrestricted release" of all her
medical information to the defendant. 78 The Court of Appeals, in a writ
proceeding, likened the blank authorization to an ex parte subpoena. 79 Such
ex parte subpoenas, the Court of Appeals noted, were forbidden by Munroe v.
Kentucky Bar Association. 80
The Court of Appeals went on in Geary to extol the virtues of our civil
rules by explaining that the medical records sought by the defendant may be
discovered through traditional discovery methods, such as formal subpoenas
and depositions. 81 The court further stressed the importance of "adversarial
safeguards" in the discovery process. 82
The tenor of the opinion of the Court of Appeals in Geary appears to
support Caldwell's position, but Geary's analysis diverges from the instant
77 979 S.W.2d 134 (Ky.App. 1998).
78 Id. at 135.
79 Id. at 136.
80 927 S.W.2d 839 (Ky. 1996).
81 979 S.W.2d at 136.
82 Id.
28
issue by contemplating ex parte subpoenas. The case at hand contains no
suggestion of the use of ex parte subpoenas, nor can it rightfully be said that a
litigant requesting an ex parte interview (or an order permitting the defendant
to make such a request) is akin to an ex parte subpoena. By their very nature,
informal ex parte interviews are voluntary and, thus, unlike the ex parte use of
subpoena power.
Caldwell also takes issue with the trial court and the Court of Appeals
citing Davenport v. Ephraim McDowell Memorial Hospital, Inc., 83 as support for
the contested order because its holding was premised upon an earlier version
of CR 26.02. In Davenport, the trial court entered an order permitting a
medical-malpractice defendant to request an ex parte meeting with the
plaintiff's treating physicians, whom the plaintiff had enlisted as expert
witnesses ahead of trial.8 4 On appeal, the Court of Appeals concluded the trial
court's order was proper, seizing on the language in the then-existing version of
CR 26.02(4)(a)(ii) that permitted discovery from expert witnesses "by other
means" not enumerated by the civil rules at the discretion of the trial court. 85
We agree that discussion of Davenport is misplaced. The 2004 amend-
ment to CR 26.02 removed the "by other means" language relied upon by the
Court of Appeals in holding the trial court's order valid. For this reason,
83 769 S.W.2d 56 (Ky.App. 1988).
84 Id. at 62.
85 Id.
29
Davenport's analysis of ex parte communications with expert witnesses is
outdated.
But simply because the language that authorized the court's order in
Davenport has been removed, that does not shift Davenport into a tacit
abolition of litigants' ability to seek ex parte meetings with the opposing party's
physicians. One crucial fact renders Davenport inapplicable as an indictment
against ex parte contacts with physicians: it concerns physicians retained as
expert witnesses. Once retained as experts, CR 26.02(4)—both the version
extant in Davenport and the iteration currently in force—lists exclusively the
manner in which discovery may be obtained. 86 So removal of the language
permitting authorization of discovery "by other means" vitiates ex parte
interviews with physicians retained as expert witnesses, but no such language
limits discovery from nonexpert fact witnesses to the formal methods
authorized in our Civil Rules.
The case that we find most applicable to the present controversy evaded
citation by both the trial court and the Court of Appeals. In Roberts v.
Estep, 87—the only case touching on this issue to be decided by this Court—we
held that no Kentucky law prohibits a defendant from contacting ex parte the
plaintiff's treating physicians. 88 Caldwell attempts to undercut the strength of
this holding noting Roberts was a workers' compensation case and
86 CR 26.02(4) ("Discovery of facts known and opinions held by experts . . . may
be obtained only as follows . . . .").
87 845 S.W.2d 544 (Ky. 1993).
88 Id. at 547.
30
KRS 342.020 requires waiver of any privilege or confidentiality when filing
claim. 89 Caldwell correctly states the law but not its impact on the Court's
decision.
Roberts does not cite to KRS 342.020 and waiver, compulsory or
otherwise. The Court concluded that the defendant's ex parte contact with
plaintiff was not rendered impermissible by Kentucky law; it did not conclude
that waiver under KRS 342.020(8) authorized the defendant's contact. Had the
Court in Roberts based its decision on KRS 342.020, we think it would have
said so. We will not read into the Court's analysis law that is not patent in its
opinion.
In support of her argument against the trial court's order, Caldwell cites
statutory and case law from various jurisdictions that prohibit ex parte
contacts with treating physicians. While we respect the decisions of our sister
states, we nonetheless find their citation unpersuasive. Most notably this is
because most of the cited decisions were based on state laws that have no
counterpart in Kentucky law—namely the physician-patient privilege and
statutes explicitly prohibiting ex parte interviews with treating physicians.
That other states found it prudent to adopt a physician-patient privilege or to
prohibit by statutory enactment the type of contacts Caldwell currently
challenges does little to alter our analysis of Kentucky law.
Upon conclusion of our analysis of Kentucky law, and having addressed
each of Caldwell's state-law arguments, we have unearthed no law that limits a
89 KRS 342.020(8).
31
litigant's ability to conduct informal ex parte interviews when the fact witness
to be interviewed is a treating physician.% They are like any other fact witness
in the eyes of the law, and litigants may request voluntary ex parte interviews
with nonexpert treating physicians as they please. But Kentucky law does not
create an entitlement or right to conduct ex parte interviews with treating
physicians.
So Kentucky law cannot be "contrary" to HIPAA as pertaining to ex parte
interviews with treating physicians because our law speaks to their viability. 91
Weconlud,thrfaenolimtsadefn'biltyo
request an ex parte interview with the plaintiffs treating physician. But the
physician's ability to disclose the plaintiffs protected health information in an
ex parte correspondence is regulated by HIPAA, so disclosure may only be
permitted by order of the trial court satisfying 45 C.F.R. § 164.512(e)(1)(i). Like
with all other discovery matters, trial courts will remain the gatekeepers and
may grant or deny a party's request for a HIPAA-compliant order authorizing
ex parte disclosure of protected health information at their discretion. 92
90 This holding, of course, does not vitiate any professional duties of
confidentiality by which physicians may be bound. That those duties do not carry the
weight of law does not render them inapplicable or unenforceable in the proper venue.
91 See Arons, 880 N.E.2d at 842 ("[W]here there is a State provision and no
comparable or analogous federal provision, or the converse is the case, there is no
possibility of preemption because in the absence of anything to compare there cannot
be a contrary requirement . . . .") (citing Standards for Privacy of Individually
Identifiable Health Information, 64 Fed.Reg. 59,918, 59,995) (Nov. 3, 1999) (quotation
marks and alterations omitted).
92 See Holman, 785 N.W.2d at 108-09 ("HIPAA does not require a trial court to
grant a motion for a protective order. Therefore, a trial court retains its discretion .. .
to issue protective orders and to impose conditions on ex parte interviews.").
32
C. The Challenged Order Does not Satisfy HIPAA's Procedural Require-
ments for the Disclosure of Protected Health Information; but Because
the Order Expressly Withholds the Necessary Authorization, a Writ
Need not Issue.
Having determined the law applicable to ex parte interviews with treating
physicians, we must now apply that law to the facts at hand. After little more
than a cursory review of the challenged trial court order, it becomes manifest
that the order does not satisfy the requirements of HIPAA to permit disclosure
of protected health information during ex parte interviews.
As addressed above, for disclosure of protected health information to
comply with HIPAA, a litigant must first obtain an order authorizing disclosure
under 45 C.F.R. § 164.512(e)(1)(i). The instant order does not meet this
requirement. In fact, the order acknowledged the need for authorization to
permit disclosure of Caldwell's protected health information by her physicians
yet declined to authorize disclosure.
The present order has done nothing more than maintain the status quo.
It has effectively, and correctly, stated the status of the law currently: defense
counsel may seek an ex parte interview with Caldwell's treating physicians, but
those physicians may not disclose her protected health information without
facing HIPAA sanctions. Indeed, the order states as much—"the treating
physician may be unable . . . to speak with counsel absent specific
authorization from the [c]ourt permitting him to do so. The [c]ourt is vested
with the discretion to provide such authorization. However, the [c]ourt is not
inclined to do so in the instant case . . . ."
33
We decline to exercise our discretion to issue a writ in this instance even
though any ex parte disclosure of protected health information would surely
violate HIPAA. This injury is too speculative to merit such an extraordinary
remedy. The order leaves the treating physicians' participation in the ex parte
interview and the disclosure of Caldwell's medical information—if they do
choose to undertake the interview—to the doctors' discretion. The harm is not
immediate enough to require an extraordinary remedy to rectify Caldwell's
potential grievance.
Further, the trial court's order does nothing to displace the duty of
privacy placed on healthcare providers by HIPAA's privacy regulations. The
order does not supplant or alter the duty placed on the physicians possessing
Caldwell's protected health information. The order's authorization of the
ex parte contacts that Castro sought was also unnecessary based on our
analysis; Castro's counsel did not need the court's blessing to seek an ex parte
meeting with Caldwell's physicians. The meetings, even without the challenged
order, would be, of course, at the discretion of the physician, just as they are
under the order.
Given these circumstances, we find the trial court's order to be an
accurate statement of the law as it is presently situated and that any potential
HIPAA violation is too speculative to merit extraordinary relief in the form of a
writ. So we affirm the decision of the Court of Appeals denying Caldwell's
petition for a writ.
34
III. CONCLUSION.
Based on the foregoing, we conclude nothing in Kentucky law prohibits
defendants from seeking ex parte contacts with nonexpert physicians that
treated the plaintiff as if they are ordinary fact witnesses. We similarly
conclude that HIPAA does not prohibit ex parte interviews with treating
physicians as a tool of informal discovery. That HIPAA does not operate to bar
these contacts does not relieve treating physicians of the constraints of HIPAA's
privacy regulations. HIPAA controls disclosure of protected health information.
Trial courts may satisfy HIPAA and authorize disclosure of the plaintiff's
protected health information in an ex parte interview by entering an order that
complies with 45 C.F.R. § 164.512(e)(1)(i).
We conclude that the order challenged in the instant proceeding did not
comply with 45 C.F.R. § 164.512(e)(1)(i), and any disclosures made during
ex parte interviews authorized by the order would be in violation of HIPAA. But
the order is explicit in its failure to authorize disclosure and its grant of
permission allowing Castro's counsel to seek ex parte interviews with Caldwell's
physicians was not necessary to authorize this practice. So we find the
challenged order to be nothing more than an accurate recitation of the law
pertaining to ex parte interviews with the opposing party's treating physicians
and does not merit an extraordinary writ of prohibition.
All sitting. All concur. Keller, J., concurs by separate opinion in which
Barber and Noble, JJ., join.
35
KELLER, J., CONCURRING: I concur with the result of the majority
opinion but write separately because I believe that it is time for Kentucky to
adopt a general physician-patient privilege. As the majority states, "We have
heretofore not identified a cognizable right to a privilege in medical
communications and again decline to do so today." That statement is only
partially correct. KRE 507 recognizes that communications between a
psychotherapist and patient are privileged. A psychotherapist is defined, in
part, as "[a] person licensed by the state of Kentucky, or by the laws of another
state, to practice medicine . . . while engaged in the diagnosis or treatment of a
mental condition." KRE 507(2)(A) (emphasis added). Thus, Kentucky does
recognize that medical communications are privileged as long as they occur
within the mental health setting. It is understood that sensitive and highly
personal information is exchanged between a patient and his or her
psychotherapist. Likewise, a patient being treated by a physician for purely
physical ailments must reveal sensitive health information in order to facilitate
treatment. I can discern no logical reason for the exclusion of medical
communications regarding physical health from privilege when
communications regarding mental health are privileged.
I note that the other privileges in Article V of the KRE, with the exception
of the spousal privilege, prohibit disclosure, not just testimony. Therefore, a
general physician-patient privilege should, if similar to the psychotherapist-
patient privilege, also prevent disclosure of privileged communications unless a
36
patient places her medical condition into controversy and the information is
obtained in conformity with the rules of procedure.
Barber and Noble, JJ., join.
37
COUNSEL FOR APPELLANT:
Eric M. Lamb
Lamb 85 Lamb, PSC
Erwin A. Sherman
Sherman and Osborne
APPELLEE:
Judge Arch Cox McKay Chauvin
Jefferson Circuit Court, Division 8
COUNSEL FOR REAL PARTY IN INTEREST,
DR. FRANK P. CASTRO,
D/B/A PALO ALTO SPINE, LLC:
Donald Kenneth Brown, Jr.
Casey Alan Krill
Mark Edward Hammond
Robert Clayton Veldman
O'Bryan, Brown 86 Toner, PLLC
COUNSEL FOR AMICUS CURIAE
KENTUCKY JUSTICE ASSOCIATION:
H. Philip Grossman
Grossman 86 Moore, PLLC
Paul A. Casi, II
Jeffrey Wayne Adamson
Paul A. Casi, II, P.S.C.
Kevin Crosby Burke
COUNSEL FOR AMICUS CURIAE
KENTUCKY DEFENSE COUNSEL:
Bradley A. Case
Dinsmore 86 Shohl, LLP
38