The issue that the Supreme Court of Kentucky (“Kentucky Supreme Court”) had to decide in a case it decided on July 2, 2015 was whether litigants in Kentucky may, and under what conditions, engage in ex parte interviews with treating physicians in Kentucky medical malpractice cases.
The Kentucky Supreme Court held that based on its review of Kentucky and federal law, 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.
The Kentucky Supreme Court stated that because HIPAA, by its terms, applies to the oral disclosure of health information, it has routinely been held that the disclosure of protected health information in ex parte interviews falls within the ambit of HIPAA. The Kentucky Supreme Court further stated that viewing HIPAA’s privacy regulations as “merely superimpos[ing] procedural 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.
For an ex parte interview with a treating physician to comply with HIPAA, it must fall within the litigation exception: (1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding: … (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 …
The Kentucky Supreme Court stated that 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, and that 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. Thus, applying this definition of lawful process, the Kentucky Supreme Court held that it was constrained to conclude that ex parte interviews do not fall within this strict definition of lawful process.
The Kentucky Supreme Court stated, “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 information may only be disclosed under HIPAA’s litigation exception if the exception’s first prong is satisfied by order of the trial court … 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 … 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 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).”
The Kentucky Supreme Court then discussed relevant Kentucky state law and stated: “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 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.”
“We conclude, therefore, that there are no limitations on a defendant’s ability to request an ex parte interview with the plaintiff’s 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.”
” … 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).”
Caldwell v. Chauvin, 2014-SC-000390 MR.
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