By Alex Stein
Whether a litigant’s right to conduct informal ex parte interviews with fact witnesses extends to the plaintiffs’ treating physicians, given the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), is a question of considerable practical importance. This question has recently received a positive answer from the Kentucky Supreme Court in Caldwell v. Chauvin, — S.W.3d —-, 2015 WL 3653447, (Ky. 2015), after “percolating through state courts, federal district courts, and academic circles for a decade.” Id. at *5.
HIPAA regulations, issued by the Secretary of Health and Human Services, prohibit disclosure of any information that –
- Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
- Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.
45 C.F.R. § 160.103.
This prohibition is subject to the litigation exception that permits disclosure of protected information “in the course of any judicial or administrative proceeding.” 45 C.F.R. § 164.512(e)(1).
The plaintiff argued that this exception does not permit an informal ex parte discovery because such discovery does not take place “in the course of any judicial or administrative proceeding.” This argument was supported by the Missouri Supreme Court’s decision in State ex rel. Proctor v. Messina, 320 S.W.3d 145, 156-57 (Mo. 2010) (en banc), which explained that the litigation exception only applies to proceedings that take place “under the supervisory authority of the court either through discovery or through other formal court procedures” and ruled that HIPAA proscribes informal ex parte communications. This ruling did not help the plaintiff, however, because the court also decided that Missouri courts are not authorized to issue formal orders directed to nonparties.
The defendants, for their part, relied on the New York Court of Appeal decision in Arons v. Jutkowitz, 880 N.E.2d 831, 842 (N.Y. 2007), followed by the Michigan Supreme Court in Holman v. Rasak, 785 N.W.2d 98, 105–08 (Mich. 2010). According to that decision, informal interviews fall under the litigation exception provision that permits discovery not only “in response to a subpoena [and a formal] discovery request” but also by “other lawful process.” 45 C.F.R. § 164.512(e)(1)(i)-(ii). Hence, informal ex parte interviews with the plaintiff’s doctors can proceed when the defendant gives the plaintiff the requisite privacy-protecting assurances pursuant to the litigation exception. These assurances include reasonable efforts to secure a qualified protective court order that will prevent further use of the plaintiff’s medical information. Because the plaintiff waived the physician-patient privilege when he sued the defendants for medical malpractice, he can claim no confidentiality rights beyond these statutory assurances.
The Kentucky Supreme Court decided that the New York and Michigan precedents interpret “other lawful process” too broadly. The Court ruled that this expression refers to a recognized legal process and that “ex parte interviews do not fall within this strict definition.” The Court, however, also ruled that a trial court can issue an order allowing defendants to carry out an informal interview with the plaintiff’s doctors, given that “litigants have historically been permitted to conduct ex parte interviews with fact witnesses.” Id. at *1. This interpretation of the litigation exception, the Court explained, is “consistent with our reliance on trial courts as gatekeepers of discovery—even informal discovery, when appropriate.” Id. at *9. Hence, contrary to the plaintiff’s argument, “HIPAA does not prohibit ex parte interviews, but its strictures do regulate disclosure of protected health information during their course. … HIPAA’s procedural prerequisites to disclosure of protected health information may only be satisfied by order of a court or administrative tribunal.”
This interpretation of the HIPAA regulations effectively creates a qualified physician-patient privilege. Any disclosure of a patient’s medical information in connection with litigation can only take place pursuant to a court order. Courts should issue such orders only when the value of protected information, measured in terms of its contribution to factfinding, exceeds the harm to the patient’s privacy, and they also should protect the information against unnecessary disclosure. 45 C.F.R. § 164.512(e)(1)(i)-(ii).
The Court also explained that Kentucky law does not prohibit informal interviews with party-opponent witnesses and does not recognize a physician-patient privilege. This law consequently does not conflict with HIPAA, which obviated the need to consider HIPAA’s preemption provision. Furthermore, the Court ruled that the American Medical Association’s Code of Medical Ethics does not carry the force of law, and so the plaintiff cannot benefit from its strict confidentiality requirements.
This very well reasoned and well balanced decision was written by Kentucky’s Chief Justice, John D. Minton.