United States District Court, D. Kansas
D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
WESLEY MEDICAL CENTER LLC, et al., Defendants.
MEMORANDUM & ORDER ON MOTION FOR ORDER FOR
RELEASE OF PROTECTED HEALTH INFORMATION
KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE
the Court is the “Joint Motion for Order for Release of
Protected Health Information and Allowing Ex Parte
Interviews with Treating Physicians and Other Health Care
Providers” filed by Defendants. (Doc. 193.) After
review of the parties' submissions, the Court
GRANTS Defendant's motion.
Medical Information and Care.
through his natural guardian and next friend, filed his
federal court Complaint on April 9, 2018, alleging medical
malpractice against Defendants resulting from the medical
care he received on March 5 and 6, 2017. Plaintiff alleges
that on March 6, 2017, he “suffered a catastrophic and
medically-preventable stroke that left him with right-side
paralysis, neurological damage and other debilitating
physical injuries that permanently changed his and his
parents' lives.” (Doc. 1, at 5.) The facts of this
case are more thoroughly summarized in this Court's Order
on Defendant Chambers-Daney's “Motion to Strike
Immaterial, Impertinent and Scandalous Matters from
Plaintiff's Complaint” and Defendant Grover's
“Motion to Strike.” (Doc. 116, at 3-6.) That
summary is incorporated herein by reference.
before the Court is the “Joint Motion for Order for
Release of Protected Health Information and Allowing Ex
Parte Interviews with Treating Physicians and Other
Health Care Providers” filed by all Defendants. (Doc.
193.) Plaintiff argues that the Order, as proposed, is
improper because certain treating physicians are located in
Missouri (where ex parte communications by defense
counsel with treating physicians are prohibited), several of
D.M.'s treating physicians will also be identified as
retained experts, and certain language proposed by Defendants
is prohibited in this District. (Doc. 212.)
The Health Insurance Portability and Accountability Act of
Health Insurance Portability and Accountability Act of 1996
(“HIPAA” or “the Act”) prohibits
covered entities from engaging in the unauthorized disclosure
or misuse of protected health information. Harris v.
Whittington, No. 06-1179-WEB, 2007 WL 164031, at *2
(D.Kan. Jan.19, 2007). The Act does not, however, prohibit
all disclosures but instead imposes procedures on health care
providers as to the disclosure of medical information while
still protecting the privacy of the patient. Spraggins v.
Sumner Reg. Medical Ctr., 2010 WL 4568715, at *2 (D.
Kan. Nov. 3, 2010). HIPAA regulations provide for the
disclosure of protected health information in judicial
proceedings under the following circumstances:
(1) Permitted disclosures. A covered entity may disclose
protected health information in the course of any judicial or
(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
(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
45 C.F.R. § 164.512(e). This regulation essentially
permits the provider to disclose information under two
optional procedures without violating HIPPA: (1) by court
order under section 164.512(e)(1)(i) authorizing such
disclosure or, alternatively, (2) by a formal discovery
request, such as a subpoena, accompanied by required notices
case, Defendants seek to proceed under section
164.512(e)(1)(i), allowing for the release of protected
health information upon court order. The overriding purpose
of the Federal Rules of Civil Procedure is to provide for the
“just, speedy and inexpensive” resolution of
case. Fed.R.Civ.P. 1. A direct order may help achieve this
goal by shortening the discovery process and providing
clarity to providers.
Court acknowledges that HIPAA and its regulations do not
expressly authorize ex parte interviews of health
care providers. That stated, there is a well- established
practice among judges of this District “of allowing
informal ex parte interviews of plaintiff's
treating physicians who are merely fact witnesses as long as
defendant complies with HIPAA and its related
regulations.” Paliwoda v. Showman, No.
12-2740-KGS, 2013 WL 3756591, at *2 (D. Kan. July 15, 2013)
ex parte interviews are allowed by courts because
“HIPAA presents certain considerations and constraints
for covered entities cautious not to run afoul of the
Act.” Lowen v. Via Christie Hosps. Wichita,
Inc., No. 10-1201-RDR, 2010 WL 4739431, at *2 (D. Kan.
Nov. 16, 2010). “An order authorizing ex parte
interviews of health care providers creates an avenue for
informal discovery that might not otherwise be
available.” Paliwoda v. Showman, No.
12-2740-KGS, 2013 WL 3756591, at *2. Opinions from this
reason that to allow ex parte communications with
fact witnesses, such as treating physicians, creates a just
result by allowing both parties equal, unfettered access to
fact witnesses. To prohibit ex parte communications
would allow one party unrestricted access to fact witnesses,
while requiring the other party to use formal discovery that
could be expensive, timely, and unnecessary. Witnesses, of
course, may refuse to communicate ex parte and thus
require the parties to resort to formal discovery procedures.
Less expensive informal discovery, nevertheless, should be
encouraged. For these reasons a court may ...