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D.M. v. Wesley Medical Center, LLC

United States District Court, D. Kansas

December 20, 2018

D.M., a minor, by and through his next friend and natural guardian, KELLI MORGAN, Plaintiff,
v.
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

         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 Defendants. (Doc. 193.) After review of the parties' submissions, the Court GRANTS Defendant's motion.

         BACKGROUND

         A. Medical Information and Care.

         Plaintiff, 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.

         Currently 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.)

         ANALYSIS

         A. The Health Insurance Portability and Accountability Act of 1996.

         The 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 administrative proceeding:
(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.

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 and assurances.

         In this 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.

         The 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) (citations omitted).

         Such 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 District

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 ...

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