We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background.  Onscreen was a popular cable reality franchise involving wealthy denizens of a gated community in Southern California.  The heated argument du jour involved one resident’s decision to speak privately to another about a third, during which exchange B-to-C confidences may or may not have been disclosed to A.  The original confider was adamant that the information was hers alone to control, insisting that the private conversation should not have occurred.  Much perfectly-coiffed shrieking ensued.

We were reminded of this spectacle as we read the decision of the Kentucky Supreme Court in Caldwell v. Chauvin, -- S.W. 3d. --, 2015 WL 3653447 (Ky. June 11, 2015).  In Caldwell,  the underlying medical malpractice action involved plaintiff’s claim that her spinal surgery was unnecessary and negligently performed and caused her permanent injuries.  In the course of discovery, defendant moved for a qualified protective order permitting him to make ex parte contacts with plaintiff’s healthcare providers.   The court entered an order permitting such contacts but expressly declining to authorize disclosure of plaintiff’s health information. The order “also explicitly stated it was [not] requiring any physician to speak with [defendant] . . . , noting [that] the treating physicians [were] free to accept of decline counsel’s request as they [saw] fit.”  Id. at *2 (internal punctuation omitted).  Plaintiff sought a writ of prohibition from the Court of Appeals.  The Court of Appeals declined to issue the writ, holding: 1) no Kentucky law prohibits the trial court from authorizing ex parte communications with non-expert treating physicians; and 2) the order did not violate any privacy right plaintiff might have because it did not compel the disclosure of any information.  Id.

On further appeal, the Supreme Court first considered whether HIPAA prohibits ex parte contacts with treating physicians.  The Court noted that HIPAA provides for mandatory disclosure of protected health information by a covered entity, such as a healthcare provider, only when: 1) an individual requests her own health information; or 2) the Secretary of HHS requests it to investigate HIPAA compliance.  Id. at *6 (citation to HIPAA omitted).   “Permissible disclosures” under HIPAA include the “litigation exception,”  which “permits disclosure of protected health information in the course of any judicial or administrative proceeding, either in response to an order of court or administrative tribunal or in response to a subpoena, discovery request or other lawful process, so long as additional safeguards are met” to protect the disclosed information.  Id. (internal punctuation and citation omitted). 

 “Noticeably absent from the sea of HIPAA privacy regulations,” the Court pointed out, “is any mention of ex parte communications between counsel and a covered entity.  In fact, the privacy rule does not purport explicitly to regulate the permissibility of ex parte communications or interviews as an informal discovery tool.” Id. at *7.  However, “[b]ecause 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. “  Id.  While plaintiff argued that that the so-called “judicial exception” is inapplicable to ex parte discovery because such discovery falls “outside the course of any judicial or administrative proceeding,” the Court agreed with defendant that HIPAA “does not prohibit ex parte interviews with treating physicians” but “merely superimposes procedural prerequisites to authorize disclosure of protected health information.”  Id.  The Court emphasized that protected health information may be disclosed in the course of such an interview only when ordered by a court or administrative tribunal.  Id.

Preemption

The Court next considered the issue of HIPAA preemption, noting that “HIPAA contains a preemption clause whereby any ‘contrary’ provision of state law is preempted absent the application of any enumerated exception.”  Id. at *10.  But, “if a ‘contrary’ law requires a more stringent standard of privacy, HIPAA’s preemption provisions are inapplicable and state law controls.”  Id. at *10. Thus, the Court analyzed Kentucky law to determine what law controlled the dispute.

First, the Court rejected plaintiff’s arguments that a patient- physician privilege protected her communications with her treating physicians, or, in the alternative, that the Court should treat those communications as privileged even if no privilege existed.. The Court commented that plaintiff’s argument was “disingenuous at best,” as, “[f]or better or worse, [Kentucky] jurisprudence has been unwavering in [its] rejection of the patient-physician privilege.”  Id. at *11.  The Court concluded, with evident impatience, “It is high time litigants abandon this tired argument. Our disinclination to recognize a physician-patient privilege or to apply the faux privilege that [plaintiff] argues for in the alternative is well documented,” to be altered only by changes to the rules of evidence or by legislative enactment.  Id.

Next, the Court rejected plaintiff’s argument that the American Medical Association’s Code of Medical Ethics rendered ex parte contacts with treating physicians impermissible. The Court noted that, while the relevant provisions “created a professional duty that requires healthcare providers to maintain the confidentiality of patient information,” the Code lacked the force of law and did not “create an all-encompassing right to confidentiality by patients.”  Id. at *12.  The Court concluded,

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 restraint he physician’s willingness to agree to such an interview, but it in no way prohibits a party to litigation from requesting one. 

Id. at *13.   

Finally, commenting that, “[a]s with her previous state-law arguments, [plaintiff] again overstates the scope of the law she cites,” the Court concluded that nothing in Kentucky case law “limits a litigant’s ability to conduct informal ex parte interviews when the fact witness interviewed is a treating physician.  They are like any other fact witness in the eyes of the law.”  Thus, Kentucky law contains neither prohibition against such interviews nor entitlement to them.  Id. at *14.  As such, “Kentucky law cannot be contrary to HIPAA as pertaining to ex parte interviews with treating physicians . . . ,” and preemption doesn’t come into play. 

The Court concluded  that, while the challenged trial court order was not HIPAA-compliant and could not operate to authorize the disclosure of the plaintiff’s protected health information, it did not seek to provide such authorization.  In fact, it expressly declined to compel disclosure of protected  information.  As such, the trial court’s order did “nothing more than maintain the status quo.   It . . .effectively, and correctly, stated the status of the law currently:  defense counsel may seek an ex parte interview with [plaintiff’s] treating physicians, but those physicians may not disclose her protected health information without facing HIPAA sanctions.”  Decision affirmed, no writ issued. 

We like this opinion.  We enjoy good writing and appreciate a prickly, impatient judge (when we are not the targets).  And if nothing really happened – if all of the holdings were already inevitable under Kentucky law and HIPAA – it was a good show. Like our favorite reality screamfests.  Tune in tomorrow.