Deer Run Estates, LLC v. Hon Darren W. Peckler Judge, Mercer Circuit Court, Et Al

• Court: Kentucky Supreme Court
• Decided: June 8, 2015
• Docket: 2014 SC 000390
• Status: Unknown

Opinion

RENDERED: JUNE 11, 2015 TO BE PUBLISHED

oSuprrittr ntfuritg 2014-SC-000390-MR

STACEY CALDWELL APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2014-CA-000456-OA JEFFERSON CIRCUIT COURT NO. 09-CI-007369

HONORABLE A. C. McKAY CHAUVIN, JUDGE, JEFFERSON CIRCUIT COURT APPELLEE

AND

DR. FRANK P. CASTRO, D/B/A PALO ALTO SPINE, LLC REAL PARTY IN INTEREST

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

Litigants have historically been permitted to conduct ex partel interviews

with fact witnesses. These interviews serve various purposes but are mainly

1 The law often attaches a negative connotation to communications labeled as ex parte. See BLACK'S LAW DICTIONARY 597 (7th ed. 1999) ("ex parte communication: A generally prohibited communication between counsel and the court when opposing counsel is not present."). Our use of the phrase ex parte throughout this opinion is devoid of those implications contrived from clandestine—and impermissible— communications between an attorney and a judge or a party known to be represented by counsel. Instead, we use this phrase in a manner that is true to the basic definition of the Latin phrase, "from or on behalf of one side of the lawsuit," to refer to a meeting between counsel and a fact witness without prior notification to opposing counsel and the court. BRYAN A. GARNER, GARNER'S DICTIONARY OF MODERN LEGAL USAGE 343 (3d ed. 2011). Other jurisdictions, as well as the parties and amici presently before us, have routinely referred to these interactions as ex parte without invoking the level of impropriety ordinarily associated with ex parte communications. We do the same. directed at investigating the facts of the case and curtailing litigation costs by

allowing litigants to gauge the usefulness of a witness's potential testimony by

interviewing the witness before paying for a discovery deposition.

Whether this time-honored method of informal discovery extends to the

plaintiff's treating physicians and what role the federal Health Insurance

Portability and Accountability Act of 1996 (HIPAA) plays in regulating these

interviews has been an issue across the country for some time. And the issue

has come before many of Kentucky's circuit courts and the federal courts in ,

both the Western and Eastern Districts of Kentucky. Today we decide

conclusively whether litigants in Kentucky may, and under what conditions,

engage in ex parte interviews with treating physicians.

In an original action before the Court of Appeals, Stacey Caldwell, the

plaintiff in the underlying medical-malpractice action, sought a writ of

prohibition preventing the trial court from enforcing its order permitting

counsel for Dr. Frank Castro, 2 the defendant in the underlying action, to

contact Caldwell's treating physicians ex parte. Importantly, no provision in

the trial court's order compelled any physician to have contact with Castro's

counsel or disclose any information, nor did it authorize disclosure of protected

health information; whether or not to disclose any information was left to the

treating physician's discretion. Before the Court of Appeals, Caldwell argued

that because she was entitled to confidentiality in her communications with

2 Dr. Castro practices for Palo Alto Spine, LLC.

2 her healthcare providers, the trial court's order permitting ex parte contact

with those providers was in error.

The Court of Appeals declined to issue a writ because it found Caldwell

did not have a right to confidentiality in her communications with her treating

physicians. As a result, the Court of Appeals concluded the trial court's order

was not erroneous.

Based on our review of Kentucky and federal law, we conclude that 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. Upon review of the instant order, it is clear the trial court

declined to authorize ex parte disclosure of Caldwell's health information thus

failing to satisfy HIPAA. But because the trial court is explicit in its refusal to

authorize ex parte disclosures, we find it unnecessary to issue an extraordinary

writ.

I. FACTUAL AND PROCEDURAL HISTORY.

The underlying litigation stems from a discectomy Castro performed on

Caldwell. Caldwell had a long history of spinal problems predating the

procedure, but she alleges the surgery was unnecessary and negligently

performed. Caldwell claims she suffered painful nerve damage and restricted

mobility because of this surgery.

3 During the course of discovery and after obtaining Caldwell's medical

records, Castro moved the trial court to enter a qualified protective order

permitting him to make ex parte contacts with Caldwell's healthcare providers.

Following a hearing, the trial court concluded there is no bar prohibiting

Castro's counsel from contacting ex parte Caldwell's healthcare providers

because they are ultimately fact witnesses and the information they possess is

not subject to an evidentiary privilege. The trial court's order 3 limited the

scope of Castro's counsel's permissible ex parte contacts to those physicians

who treated Caldwell "for the injuries that are the subject matter of this

litigation" but expressly declined to authorize disclosure of Caldwell's health

information. The court's order also explicitly stated it was neither requiring

any physician to speak with Castro nor compelling disclosure of any

information to Castro, noting the "treating physicians are free to accept or

decline counsel's request as they see fit."

Caldwell filed a petition for a writ of prohibition and a motion for

intermediate relief' with the Court of Appeals. In her petition, Caldwell argued,

as she does now, she was entitled to a writ because the trial court's order

violated the physician-patient privilege, her right to confidentiality in her

communications with her doctors, and the order was not authorized by federal

3 The court's order, although entitled "Qualified Protective Order," is nothing of the sort. The order does not mandate any disclosure and does not require any protective measures to ensure the confidentiality of information discovered pursuant to the order. Although it is a qualified protective order in name, the trial court's order also fails to satisfy HIPAA's requirements for qualified protective orders as outlined in 45 C.F.R. 164.512(e)(1)(v). 4 See Kentucky Rules of Civil Procedure (CR) 76.36(4).

4 law. The Court of Appeals denied her motion for intermediate relief without

discussion. It also omitted analysis of the writ prerequisites and proceeded

directly to the merits of her allegation of error.

Upon reaching the merits, the Court of Appeals declined to issue a writ

and presented two main reasons for so holding. First, it concluded no

Kentucky law prohibits the trial court from authorizing ex parte

correspondence with nonexpert treating physicians. And second, the Court of

Appeals reasoned the trial court's order did not violate any right Caldwell may

have to privacy of her medical information because the order does not compel

any disclosure.. The court declined to address the impact of HIPAA's privacy

regulations on Castro's ability to communicate ex parte with Caldwell's

physicians, deciding "the order of the trial court relied solely upon Kentucky

authority."

Caldwell appeals that denial to this Court as a matter of right. 5

II. ANALYSIS.

The issuance of a writ is an extraordinary remedy that is disfavored by

our jurisprudence. 6 We are, therefore, "cautious and conservative both in

entertaining petitions for and in granting such relief." 7

5 CR 76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of right from a judgment or final order in any proceeding originating in the Court of Appeals."); see also Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court . . . ."). 6 Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013). 7 Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961).

5 A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted. 8

Caldwell makes no proper argument that the trial court was without

jurisdiction to enter the challenged discovery order. 9 She seeks the second

class of writ. And when seeking a writ of the second class, a petitioner must

first show she has no adequate remedy by appeal or otherwise. If this

requirement can be met, the petitioner must then show she will suffer great

injustice or irreparable harm absent the issuance of a writ. This has

consistently been defined as injury of a "ruinous nature." 19

The latter requirement is not absolute, however. In what has come to be

known as the "certain-special-cases exception," our precedent allows waiver of

the great injustice and irreparable harm element in cases where the instant

harm may not rise to the level of irreparable but a "substantial miscarriage of

justice will result if the lower court is proceeding erroneously, and correction of

8 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). 9 Caldwell made a passing allegation that the trial court was acting outside its jurisdiction in entering the allegedly erroneous discovery order. This argument is presented for the first time in a footnote in Caldwell's reply brief. Aside from the absurdity of arguing that a trial court lacks jurisdiction to enter a discovery order in a pending civil case, Kentucky courts have declined to entertain arguments so introduced. See Smith v. Commonwealth, 366 S.W.3d 399, 401 (Ky. 2012) (quoting Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App. 1979) ("[T]he reply brief is not a device for raising new issues . . . .")). Because this issue is not properly before us, we make no further mention of it. 19 Bender, 343 S.W.2d at 801.

6 the error is necessary and appropriate in the interest of orderly judicial

administration." 11

Proof of the elements described above is a condition precedent to

contemplation of the merits underlying a writ petition. Strict adherence to

these prerequisites "is a practical and convenient formula for determining, prior

to deciding the issue of alleged error, if petitioner may avail himself of this

remedy." 12 These strictures evince a reluctance to reach the merits of alleged

errors in writ proceedings. Indeed, the test that must be satisfied before the

Court may analyze the alleged error was designed expressly to limit "the

number of writ cases that proceed to the merits of the controversy" 13 because

writ proceedings "necessitate an abbreviated record which magnifies the

chance of incorrect rulings that would prematurely and improperly cut off the

rights of litigants." 14 It bears repeating that the issuance of a writ is inherently

discretionary. Even if the requirements are met and error found, the grant of a

writ remains within the sole discretion of the Court.' 5

Because of the discretion inherent in granting a writ, we review the

decision of the Court of Appeals for an abuse of discretion. When questions of

law or findings of fact made by the Court of Appeals en route to their ultimate

decision are raised, however, we review de novo and for clear error,

11 Id. 12 Id. 13 Cox v. Braden, 266 S.W.3d 792, 796 (Ky. 2008). 14 Interactive Media Entm't & Gaming Ass'n v. Wingate, 320 S.W.3d 692, 695 (Ky. 2010) (internal quotation marks omitted). 15 Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007).

7 respectively. The Court of Appeals in the present case has omitted analysis of

the writ prerequisites in its opinion denying Caldwell's petition for a writ,

opting instead to proceed directly to the merits. 16 So we review the availability

of the writ remedy de novo.

Caldwell's argument in favor of her entitlement to an extraordinary writ

is grounded in state-law principles. She claims the trial court's order

permitting Castro's counsel to communicate ex parte with her treating

physicians was error because: communications with treating physicians are,

or should be, treated as privileged; the American Medical Association's Code of

Medical Ethics carries the force of law in prohibiting nonconsented disclosure

of confidential information; Kentucky case law prohibits trial courts from

authorizing defendant's counsel to communicate with a plaintiff's treating

physicians ex parte; and the trial court's order is "confusing and misleading."

Caldwell also argues, at least initially, that HIPAA does not create an

entitlement to ex parte contacts for defendants. It is not until the last page of

her reply brief that Caldwell makes a one-paragraph argument that HIPAA

prohibits the ex parte meetings she seeks a writ to prevent. The amicus on her

behalf, the Kentucky Justice Association, took up the HIPAA argument and

presented us with a comprehensive argument explaining why, in its view, the

trial court's order violates HIPAA. Castro, of course, refutes Caldwell's

16 It is worth noting that this practice has support in our writ jurisprudence. Our precedent authorizes proceeding directly to the merits of a dispute when they are uncomplicated and doing so would promote the end of "judicial economy in limiting the breadth of analysis appellate courts undertake when considering writs." So. Fin. Life Ins. Co. v. Combs, 413 S.W.3d 921, 927 n.20 (Ky. 2013). The Court of Appeals used that approach, but we choose the more traditional analytical approach.

8 allegations of error; and although he presents a capable argument regarding

HIPAA's impact on ex parte communications with nonparty treating physicians,

Kentucky Defense Counsel, Inc., supplied an amicus brief buttressing Castro's

cause regarding HIPAA.

We have often held discovery disputes satisfy the no-adequate-remedy-

by-appeal requirement. Cases so holding often focus on the inability of

information disclosed under an erroneous discovery order to be recalled. 17 In

those cases, "Nile injury suffered . . . will be complete upon compliance with

the order and such injury could not thereafter be rectified in subsequent

proceedings in the case." 18

This case is no different. Although Caldwell's main objection is with the

form of discovery permitted by the trial court's order, the gravamen of her

complaint is that through ex parte discovery—which, by definition, takes place

beyond the watchful eye of opposing counsel or the court—confidential or

otherwise undiscoverable information, or information protected by federal law,

may be disclosed without Caldwell's consent and to her detriment. If that were

to happen—and we must presume it will happen when assessing the

17 See, e.g., Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) ("[T]here will rarely be an adequate remedy on appeal if the alleged error is an order that allows discovery."); Bender, 343 S.W.2d at 802. 18 Bender, 343 S.W.2d at 802.

9 availability of the writ remedy 19—Caldwell would be left without an avenue of

appellate recourse to rectify her grievance. 20

We also find this issue to satisfy the certain-special-cases exception

because its resolution is necessary to ensure the orderly administration of

justice in the Commonwealth. This exception has been reserved for "first-

impression questions[] bearing importantly on the public administration of the

law or on a party's fundamental rights." 21 We find this to be a case of the

former and conclude it is particularly suited to application of this exception

because of the unique procedural posture in which this issue typically will

arise.

This case presents our appellate courts with their first opportunity to

address this issue, 22 even though the bulk of HIPAA's privacy regulations were

19 See Commonwealth, Cabinet for Health and Family Servs. v. Chauvin, 316 S.W.3d 279, 283 (Ky. 2010) ("In applying this threshold test, the petitioner's allegations are assumed to be true."). 20 See Bender, 343 S.W.2d at 802 ("Once the information is furnished it cannot be recalled."); Young v. Carran, 289 S.W.3d 586, 588 (Ky.App. 2008) ("This court has recently held that HIPAA does not create a state-based private cause of action for violations of its provisions. We also note that federal courts have uniformly held that HIPAA does not create a private cause of action even at the federal level.") (citations omitted). We except from this conclusion Caldwell's argument citing the "confusing and misleading" nature of the challenged order. Caldwell did have an adequate remedy available to rectify this issue. As the Court of Appeals recognized, "a motion for clarification in the trial court was an available and adequate remedy that precludes extraordinary relief." We agree with the Court of Appeals and conclude that a writ is not available to Caldwell on those grounds. 21 Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 349 (Ky. 2014). 22 A similar claim was raised before, but the Court of Appeals concluded that the plaintiff's allegation "that [her treating physician's] ex parte conversations with [the defendant] were violations of both HIPAA and the Kentucky Rules of Medical Ethics" was not timely raised. See Miller v. Jewish Hosp. Healthcare Servs., Inc., 2004-CA-

10 promulgated nearly fifteen years ago. 23 Our inability to address this issue

before today notwithstanding, it has been percolating through state courts, 24

federal district courts, 25 and academic circles 26 for a decade. And the issue has

arisen in the trial courts of the Commonwealth. The parties have provided

citation to Kentucky courts that have struggled to address this exact issue in

discovery orders.

Discovery disputes, as a general matter, come before this Court nearly

always via writ petitions. The very nature of informal discovery is likely to

increase this trend because restrictions on ex parte communications are even

less likely to be challenged on appeal once final judgment is reached. It stands

to reason that the only manner in which this issue may reach this Court is

through a writ petition. We find it necessary, therefore, to reach the merits of

this issue to ensure that the decisions of our trial courts concerning ex parte

contacts with treating physicians comport with Kentucky and federal law; 27

001832-MR, 2005 WL 2469688 (Ky.App. Oct. 7, 2005). This Court denied discretionary review. See Standards for Privacy of Individually Identifiable Health Information, 23

65 Fed.Reg. 82,462-01 (Dec. 28, 2000) (to be codified at 45 C.F.R. pts. 160 & 164). 24 See, e.g., State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. 2010) (en banc); Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007). 25 See, e.g., Bayne v. Provost, 359 F.Supp.2d 234 (N.D.N.Y 2005); Nat'l Abortion Fed'n v. Ashcroft, 2004 WL 292079 (N.D. Ill. Feb 6, 2004). 26See, e.g., Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP. HEALTH L. & POL'Y 35 (2015); Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating Physicians?, 75 UMKC L.Rev. 499, 500 (2006). 27 To be sure, this is not to imply that writ petitions will satisfy the certain-

special-cases exception simply because they concern a discovery matter. To the contrary, most discovery disputes concern the application of settled principles of law

11 otherwise, those decisions may continue to evade appellate review. Caldwell's

instant petition presents a claim for which a writ is an appropriate remedy at

this Court's discretion pending an analysis of the merits. 28 1 Turning to the merits of Caldwell's writ petition, we will first 'address

HIPAA's impact because, as we discuss below, the HIPAA analysis necessarily

subsumes the state-law arguments championed by Caldwell.

A. HIPAA Does not Prohibit Ex Parte Interviews with Treating Physicians, but it Does Regulate the Protected Health Information to be Disclosed in Ex Parte Interviews.

Congress enacted HIPAA with the primary purpose of making health

insurance more "portable" to prevent the denial of insurance coverage for

preexisting conditions when employees change jobs and, in so doing, change

health-insurance providers. 29 As part of HIPAA's expansive reform, Congress

charged the Secretary of the United States Department of Health and Human

Services (HHS) with promulgating regulations "with respect to the privacy of

individually identifiable health information" if Congress had not done so three

years after HIPAA's enactment. 39 When Congress failed to act, HHS adopted,

at the discretion of capable trial judges. This case is distinguished from run-of-the- mill discovery writs because if we decline to reach the merits of this issue, trial courts will be left with no precedential guidance going forward. 28See Commonwealth v. Peters, 353 S.W.3d 592, 596 (Ky. 2011) (concluding the special-cases exception applied where "the issue in the present case has far-reaching implications regarding pretrial procedure in the Commonwealth"). 29See Arons, 880 N.E.2d at 839-40 ("Congress enacted HIPAA principally to increase the portability and continuity of health insurance and to simplify administrative procedures so as to reduce health care costs."). 3° Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. No. 104-191, § 264(c)(1), 110 Stat. 1936, 2033-34.

12 after notice and public comment, privacy regulations ensuring patients' privacy

as medical records began their move to storage in a digital format. 31

The cornerstone of HIPAA's privacy rule presents a broad prohibition on

the disclosure of medical information, providing that "[a] covered entity or

business associate may not use or disclose protected health information,

except as permitted or required by this subpart." 32 A covered entity is defined

to include health plans; health care clearinghouses; and health care providers,

such as physicians and hospitals. 33 Protected health information includes, with

exceptions irrelevant here, "individually identifiable health information"

transmitted or maintained in whatever form or medium. 34 Health information

includes information "whether oral or recorded in any form or medium" that

pertains to the physical health of an individual. 35

HIPAA provides for mandatory disclosure of protected health information

by a covered entity under only two circumstances: (1) upon a request by an

individual for her own health information or (2) when requested by the

Secretary of HHS to investigate HIPAA compliance. 36 Permissible uses and

disclosures of protected health information are more numerous and reside in

31 See 65 Fed.Reg. 82,462-01 (codified at 45 C.F.R. pts. 160 86 164). 32 45 C.F.R. § 164.502(a). 33 45 C.F.R. § 160.103. 34 Id. 35 Id. 36 45 C.F.R. § 164.502(a)(2).

13 45 C.F.R. 164.502(a)(1). 37 Among the permissible disclosures authorized by

HIPAA, is the "litigation exception," which permits disclosure of protected

health information "in the course of any judicial or administrative proceeding"

either "[i]n response to an order of a court of administrative tribunal" or "[i]n

response to a subpoena, discovery request, or other lawful process," so long as

additional safeguards are met. 38

Noticeably absent from the sea of HIPAA privacy regulations is any

mention of ex parte communications between counsel and a covered entity. 39

In fact, the privacy rule does not purport explicitly to regulate the permissibility

of ex parte communications or interviews as an informal discovery too1. 4° But

the absence of express reference to ex parte interviews does not render HIPAA

inapplicable to regulate such contacts. Because HIPAA, by its terms, applies to

the oral disclosure of health information, it has routinely been held that the

37See 65 Fed.Reg. 82,462, 82,657 ("We note that nothing in the [privacy] rule requires covered entities to act on authorizations that they receive, even if those authorizations are valid. A covered entity presented with an authorization is permitted to make the disclosure authorized, but is not required to do so."). 38 45 C.F.R. § 164.512(e)(1)(i)-(ii). 39 See Bayne, 359 F.Supp.2d at 240 ("Absent within the four corners of the relevant rules and regulations and the enabling statute is any mention of the ex parte interview of a health provider, such as whether to prescribe or proscribe such actions . . . ."). 40 See Smith v. Am. Home Prods. Corp. Wyeth Ayerst Pharm., 855 A.2d 608, 622 (N.J Super. 2003) ("Nowhere in HIPAA does the issue of ex parte interviews with treating physicians, as an informal discovery device, come into view. The court is aware of no intent by Congress to displace any specific state court rule, statue or case law . . . on ex parte interviews."); Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP. HEALTH L. 136 POL'Y at 48. ("[N]either the Act, nor its legislative history, expressly prohibits defense counsel ex parte interviews.").

14 disclosure of protected health information in ex parte interviews falls within the

ambit of HIPAA. 41

The divergence of judicial opinion focuses on what impact HIPAA and its

litigation exception have on the continued viability of ex parte contacts with

treating physicians. 42 Some courts have concluded, and Caldwell and her

amicus have argued, that the judicial exception is wholly inapplicable to

informal ex parte discovery because its covert nature renders it outside "the

course of any judicial or administrative proceeding," which is a prerequisite for

disclosure under that section. The contrary analysis, promoted by Castro and

his amicus, reasons that HIPAA does not prohibit ex parte interviews with

treating physicians, it "merely superimposes procedural prerequisites" to

authorize disclosure of protected health information.

The leading case espousing the former position is State ex rel. Proctor v.

Messina, decided by the Supreme Court of Missouri. 43 In that case, the court

narrowly defined the litigation exception's leading language: "in the course of a

judicial . . . proceeding . "44 As a result, the court concluded that disclosure

41 See, e.g., Messina, 320 S.W.3d at 150 ("This federal regulation's use of the term oral communication clearly includes ex parte 'oral' communications with a physician . . . ."). 42 Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating Physicians?, 75 UMKC L.Rev. at 500 ("Whether HIPAA truly does preclude defense attorneys from conducting ex parte interviews with treating physicians has yet to be concretely settled in jurisdictions that have traditionally allowed ex parte communications. . . . Unfortunately, no two jurisdictions seem to have found a uniform line of reasoning with regard to answering this question."). 43 320 S.W.3d 145 (2010) (en banc). 44 Id. at 156.

15 under that exception "must be under the supervisory authority of the court

either through discovery or through other formal court procedures." 45 Because

the Missouri Rules of Civil Procedure do not provide a mechanism for courts to

oversee ex parte communications, the court held 45 C.F.R. § 164.512(e), which

permits disclosures in the course of judicial proceedings, does not apply to a

meeting for ex parte communications." 46

The opposing viewpoint may be found in the Court of Appeals of New

York's decision in Arons v. Jutkowitz. 47 The court in Arons concluded that "the

Privacy Rule does not prevent this informal discovery from going forward, it

merely superimposes procedural prerequisites." 48 Those procedural

prerequisites, the court explained, include satisfying one of the two prongs of

the litigation exception in order to permit disclosure of protected health

information by the covered entity. 49 This reasoning has been adopted by the

Supreme Court of Michigan, holding that ex parte interviews were permitted

under HIPAA and disclosure of protected health information permitted so, long

as the second prong of the litigation exception was satisfied by provision of

"satisfactory assurance" that efforts have been made to obtain a qualified

protective order. 50

45 Id. 46 Id. at 157. 47 880 N.E.2d 831 (N.Y. 2007). 48 Id. at 842. 49 id. so Holman. v. Rasak, 785 N.W.2d 98, 105-08 (Mich. 2010); 45 C.F.R. § 164.512(1)(e)(ii)(B) ("A covered entity may disclose protected health information in 16 We find more persuasive the New York court's position. We do not define

"in the course of any judicial . . . proceeding" as narrowly as the Messina court

in light of the Secretary of HHS's commentary in the Federal Register

pertaining to 45 C.F.R. § 164.512, which explains the Privacy Rule was "not

intended to disrupt current practice whereby an individual who is a party to a

proceeding and has put his or her medical condition at issue will not prevail

without consenting to the production of his or her protected information." 5 i

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.

Before moving on, it is worth taking a close look into the procedural

prerequisites imposed by HIPAA. For an ex parte interview with a treating

physician to comply with HIPAA, it must fall within the litigation exception.

The text of this provision reads:

(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

the course of any judicial . . . proceeding: 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: The covered entity receives satisfactory assurance . . . from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order . . . ."). 51 65 Fed.Reg. 82,462, 82,530.

17 (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. 52

Where our analysis differs from that of the courts cited above comes in

our definition of the emphasized language "or other lawful process." Both

Arons and Holman defined this phrase broadly enough to encompass an

ex parte interview and held that compliance with this second prong—providing

"satisfactory assurance" that the subject of the protected health information

was notified of the request or that a qualified protective order had been

sought—was adequate to meet HIPAA's superimposed procedural prerequisites.

We do not define lawful process so broadly.

52 45 C.F.R. § 164.512(e)(1)(i)-(ii) (emphasis added).

18 We typically define words according to their ordinary meanings when

interpreting statutes, but that general rule yields when a word or phrase has a

technical meaning within the law. 53 And the latter is the case here. Black's

Law Dictionary defines process as "[t]he proceedings in any action or

prosecution," or a "summons or writ, esp. to appear or respond in court." 54

process as defined above is also termed Thisentrycoludbghe

legal process.

We find the second definition of process to be applicable here because its

definition must be informed by the items that precede it. 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. 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. Applying this definition of lawful process, we are constrained

to conclude that ex parte interviews do not fall within this strict definition of

lawful process. 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

53 St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 535 (Ky. 2011) (quoting Baker v. White, 65 S.W.2d 1022, 1024 (Ky. 1933) ("[I]n the interpretation and construction of statutes, words and phrases employed by the lawmaking body must be given their plain and ordinary meaning according to popular usage, unless they have acquired a technical sense, in which event, they will be given such accepted technical meaning."). 54 BLACK'S LAW DICTIONARY 1222 (7th ed.)

19 information may only be disclosed under HIPAA's litigation exception if the

exception's first prong is satisfied by order of the trial court.

This interpretation of the litigation exception is also consistent with our

reliance on trial courts as gatekeepers of discovery 55—even informal discovery,

when appropriate. 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. If we were to adopt the

application of the litigation exception as contemplated in Arons, disclosure of

protected health information would be permitted under HIPAA, yet, still within

the discretion of treating physicians upon counsel's provision of "satisfactory

assurance" that: "reasonable efforts" have been made to notify the subject of

the protected health information of the request; or a qualifying protective order

has been sought. 56 Notice need not have been achieved nor a qualified

protective order obtained to satisfy the second prong of the litigation exception

as construed by Arons—"sufficient assurance" of "reasonable efforts" to provide

notice or merely seeking a qualified protective order would suffice. Indeed,

Castro argues he has met this low standard by obtaining the order at issue,

even though by its own terms the order withholds authorization for the

disclosure of protected health information and does not meet the required

55 Primm v. Isaac, 127 S.W.3d 630, 634 (Ky. 2004) ("Generally, control of discovery is a matter of judicial discretion."). 56 45 C.F.R. § 165.512(e)(1)(ii)(A)-(B); Arons, 880 N.E.2d at 842 ("As a practical matter, this means that the attorney who wishes to contact an adverse party's treating physician must first obtain a valid HIPAA authorization or a court of administrative order; or must issue a subpoena, discovery request or other lawful process with satisfactory assurances relating to either notification or a qualified protective order.").

20 protective standards outlined in 45 C.F.R. § 165.512(e)(1)(v). To interpret the

litigation exception as allowing disclosure of protected health information

under the second prong in contravention of an order declining to authorize

disclosure under the first prong undercuts the discretion vested in trial courts.

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 57 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).

But our analysis does not end here. HIPAA's privacy rule contains a

preemption clause whereby any "contrary" provision of state law is preempted

absent the application of an enumerated exception. 58 State law is "contrary" to

HIPAA "only if it would be impossible for a covered entity to comply with both

the state requirement and the Rule, or the former is an obstacle to

accomplishing the full purposes and objectives of HIPAA's 'administrative

simplification' provisions." 59 But if a "contrary" law requires a more stringent

standard of privacy, HIPAA's preemption provisions are inapplicable and state

law controls. So we must undertake an analysis of Kentucky law to determine

what law controls the instant dispute.

57 See 45 C.F.R. § 164.512(e)(1)(i). 58 45 C.F.R. § 160.203 (pertaining to the preemptive effect of HIPAA's regulations). Arons, 880 N.E.2d at 841-42 (citing 45 C.F.R. § 160.202).

21 B. Kentucky Law Places no Restrictions on Voluntary Ex Parte Interviews with Nonexpert Treating Physicians. There is a dearth of Kentucky law dealing with litigants' ability to confer

ex parte with nonparty fact witnesses. And the cases that do broach this topic

do so upon the allegation that an ex parte contact was rendered impermissible

only by way of some express rule. 60 But what we can glean from those cases is

that their analysis begins—without fail—with the presumption that ex parte

contacts with willing fact witnesses are permissible absent express limitation.

Although these contacts are not mentioned in our civil rules pertaining to

discovery, 61 those rules are not meant to be exhaustive and do not express any

intent to foreclose the "time honored" 62 tool of informal discovery that is the

ex parte interview. 63 Also, to disallow parties equal access to an effective and

inexpensive method of establishing operative facts would conflict with the

60 See, e.g., Shoney's, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994) (finding ex parte contacts between plaintiff's counsel and defendant's managerial employees to be impermissible only because of the application of Supreme Court Rule (SCR) 3.130-4.2 prohibiting counsel to contact a party represented by counsel unless authorized to do so); Hilliard v. Commonwealth, 158 S.W.3d 758 (Ky. 2005) (holding use of subpoena power to compel a witness's appearance for an ex parte interview impermissible as on abuse of subpoena power, not because the ex parte contact itself was impermissible); see also Radford v. Lovelace, 212 S.W.3d 72, 82 (Ky. 2006) overruled on other grounds by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009) ("It is important for us to remember that both sides have the right to interview witnesses before trial.") (quotation marks omitted). 61 See CR 26-37.05. Angela T. Burnette 8s D'Andrea J. Morning, HIPAA and Ex parte Interviews— 62 The Beginning of the End?, J. HEALTH & LIFE Sci. L. 73, 77 (April 2008). 63See Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991) ("The omission of [ex parte] interviews from the court rules does not mean that they are prohibited, because the rules are not meant to be exhaustive. Their absence from the court rules does indicate that they are not mandated and that the physician cannot be forced to comply, but there is nothing in the court rules precluding an interview if the physician chooses to cooperate.") (citation omitted).

22 purpose our civil rules were meant to serve. 64 So we begin our analysis of

Kentucky law as it pertains to ex parte communications with treating

physicians by accepting the same premise impliedly accepted in our precedent

and by the parties in the present case: voluntary ex parte contacts with fact

witnesses are a permissible form of informal discovery absent some limitation ,

found outside our discovery rules.

Caldwell argues such a limitation prohibiting ex parte communications

with treating physicians may be derived from multiple sources of Kentucky law.

She first alleges the existence of a physician-patient privilege operates to limit

the viability of ex parte communications with treating physicians, or,

alternatively, that these situations should be treated as if a privilege does exist.

Next, she claims that the American Medical Association's Code of Medical

Ethics, adopted by the Kentucky State Board of Medical Licensure under its .

statutory authority, carries the force of law in prohibiting nonconsented

disclosure of confidential information. Lastly, she argues that Kentucky case

law prohibits defendants from contacting ex parte nonparty treating

physicians.

64 Naive v. Jones, 353 S.W.2d 365, 367 (Ky. 1961) ("The civil rules prescribe a practical pattern for the conduct of litigation and the effective administration of justice.") (emphasis added); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C. 1983) ("As a general proposition, however, no party to litigation has anything resembling a proprietary right to any witness's evidence."); see also Langdon v. Champion, 745 P.2d 1371, 1375 n.8 (Alaska 1987) ("[T]o disallow a viable, efficient, cost effective method of ascertaining the truth because of the mere possibility of abuse, smacks too much of throwing out the baby with the bath water.").

23 1. Kentucky Does not Recognize a Physician-Patient Privilege, and We Decline to Act as Though One Does Apply Here.

Caldwell's first argument—that her communications with her physician

are privileged and thereby protected from ex parte disclosure under Kentucky

law—is disingenuous at best. This argument runs headlong into decades of

precedent and ignores the unambiguous text of our rules of evidence pertaining

to privilege. 65

For better or worse, our jurisprudence has been unwavering in its

rejection of the patient-physician privilege. 66 We see no reason to engage in a

lengthy analysis of this settled issue of law. All privileges, unless otherwise

created by statute, 67 are explicitly stated in our rules of evidence. The

physician-patient privilege is conspicuously absent from those provisions. 68

69 We cannot Andourcmlawiteognzsuchaprivl.

articulate it more clearly than the late Justice Keller did in his concurrence in

Stidham v. Clark, so we will not attempt to: "[NJ° testimonial privilege exists in

65 KRE 501-11. 66 See, e.g., Stidham v. Clark, 74 S.W.3d 719, 729 (Ky. 2002) (Keller, J., concurring); H.H. Waegner & Co. v. Moock, 197 S.W.2d 254, 256 (Ky. 1946); Boyd v. Winn, 150 S.W.2d 648, 650 (Ky. 1941); Louisville & N.R. Co. v. Crockett's Adm'x, 24 S.W.2d 580, 583 (Ky. 1930). 67Commonwealth, Cabinet for Health and Family Servs., 316 S.W.3d at 284 ("Kentucky evidentiary rules recognize the ability of the legislature to control their contents, presumably including privileges, limited only by section 116 of the Kentucky Constitution."). 68 See KRE 501-11. 69 Boyd, 150 S.W.2d at 450 ("At common law neither the physician nor the patient could claim the privilege of refusing to disclose confidential communications between them in the course of the physician's attendance upon or treatment of the patient in a professional capacity.").

24 Kentucky for communications made between a patient and physician for the

purpose of medical treatment." 70

Having found no privilege to exist, Caldwell argues, in the alternative,

that we should nonetheless treat her communications with her physicians as

though they are privileged. We readily accept that the communications

between a patient and her physician are sensitive in nature. That said, our

court system has operated relatively smoothly since its inception without the

privilege Caldwell seeks. We have heretofore not identified a cognizable right to

a privilege in medical communications and again decline to do so today.

It is high time litigants abandon this tired argument. Our disinclination

to recognize a physician-patient privilege or to apply the faux privilege that

Caldwell argues for in the alternative is well documented. Any change that will

see a physician-patient privilege recognized in Kentucky will come by way, of a

change to our rules of evidence or through the legislature's authority to create

privileges recognized in Stidham.

2. The American Medical Association's Code of Medical Ethics Does not Carry the Force of Law to Render Ex Parte Contacts with Physicians Impermissible.

Caldwell next argues that the confidentiality provisions contained in the

American Medical Association's Code of Medical Ethics guarantees her right to

confidentiality because the Kentucky Board of Medical Licensure adopted the

Code of conduct under authority granted by statute and also possesses

statutory authority to levy punishment for ethical violations.

70 Stidham, 74 S.W.3d at 729 (Keller, J., concurring).

25 The Kentucky Board of Medical Licensure is granted statutory authority

to "promulgate a code of conduct governing the practice of medicine and

osteopathy, which shall be based upon generally recognized principles of

professional conduct." 71 The Board is also statutorily afforded the concomitant

authority to discipline practitioners within its purview for ethical violations. 72

To satisfy its statutory grant of authority, the Board adopted the

AMA Code of Medical Ethics. The provision of the Code relevant to the instant

proceedings reads:

Confidentiality. The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal_ confidential communications or information without the express consent of the patient, unless required to do so by law. 73

This provision clearly creates a professional duty that requires healthcare

providers to maintain the confidentiality of patient information. But Caldwell

overstates the weight of the Code of Medical Ethics. It is true that the Code

was promulgated under statutory authority and that violations of the Code are

71 Kentucky Revised Statutes (KRS) 311.565(1)0). 72 KRS 311.595(9), (16). 73 American Medical Association, Council on Ethical and Judicial Affairs, CODE OF MEDICAL ETHICS § 5.05 (1994). Castro and Amicus Curiae Kentucky Defense Counsel, Inc., note that the quoted provision, the one relied on by Caldwell, is an outdated version of this section. This is correct; but the updated version is substantially the same as the one relied upon by Caldwell, and the amendment does not affect out analysis. See American Medical Association, Council on Ethical and Judicial Affairs, CODE OF MEDICAL ETHICS § 5.05 (2007).

26 punished by the Board under statutory authority. But that tangential

statutory basis is insufficient to give the Code the force of law and create an

all-encompassing right to confidentiality by patients.

Indeed, other ethical codes policing the medical community—even one

adopted jointly with the Kentucky Bar Association—have been held to lack the

weight of law. 74 "The Code professes to be an ethical guide, not an authority

binding the courts." 75 We are not alone in our conclusion that ethical

standards levied within the medical community are not binding on courts. 76

Furthe,counsel'abityosekanxprtein vwithapysicanboud

by the Code does not prevent the physician from abiding by his professional

duty of confidentiality.

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 restrain the physician's willingness to agree to

such an interview; but it in no way prohibits a party to litigation from

requesting one.

74 Davenport v. Ephraim McDowell Mem. Hosp., 769 S.W.2d 56, 62 (Ky.App. 1988). 75 Id. 76 Bryant v. Hilst, 136 F.R.D. 487, 492 (D. Kan. 1991) ("The court finds the code of ethics inapplicable to the issues before the court. First, it is not binding law."); Bryson v. Tillinghast, 749 P.2d 110, 114 (Okla. 1988) ("[E]thical standards are aspirational in nature and not enforceable by law.").

27 3. Kentucky Case Law Does not Preclude Litigants from Interviewing Ex Parte Treating Physicians.

For her last argument, Caldwell cites Geary v. Schroering77 as the

preeminent Kentucky case barring ex parte contact with treating physicians.

As with her previous state-law arguments, Caldwell again overstates the scope

of the law she cites.

In Geary, the trial court ordered the personal-injury plaintiff to sign a

blank medical authorization allowing the "unrestricted release" of all her

medical information to the defendant. 78 The Court of Appeals, in a writ

proceeding, likened the blank authorization to an ex parte subpoena. 79 Such

ex parte subpoenas, the Court of Appeals noted, were forbidden by Munroe v.

Kentucky Bar Association. 80

The Court of Appeals went on in Geary to extol the virtues of our civil

rules by explaining that the medical records sought by the defendant may be

discovered through traditional discovery methods, such as formal subpoenas

and depositions. 81 The court further stressed the importance of "adversarial

safeguards" in the discovery process. 82

The tenor of the opinion of the Court of Appeals in Geary appears to

support Caldwell's position, but Geary's analysis diverges from the instant

77 979 S.W.2d 134 (Ky.App. 1998). 78 Id. at 135. 79 Id. at 136. 80 927 S.W.2d 839 (Ky. 1996). 81 979 S.W.2d at 136. 82 Id.

28 issue by contemplating ex parte subpoenas. The case at hand contains no

suggestion of the use of ex parte subpoenas, nor can it rightfully be said that a

litigant requesting an ex parte interview (or an order permitting the defendant

to make such a request) is akin to an ex parte subpoena. By their very nature,

informal ex parte interviews are voluntary and, thus, unlike the ex parte use of

subpoena power.

Caldwell also takes issue with the trial court and the Court of Appeals

citing Davenport v. Ephraim McDowell Memorial Hospital, Inc., 83 as support for

the contested order because its holding was premised upon an earlier version

of CR 26.02. In Davenport, the trial court entered an order permitting a

medical-malpractice defendant to request an ex parte meeting with the

plaintiff's treating physicians, whom the plaintiff had enlisted as expert

witnesses ahead of tria1. 84 On appeal, the Court of Appeals concluded the trial

court's order was proper, seizing on the language in the then-existing version of

CR 26.02(4)(a)(ii) that permitted discovery from expert witnesses "by other

means" not enumerated by the civil rules at the discretion of the trial court. 85

We agree that discussion of Davenport is misplaced. The 2004 amend-

ment to CR 26.02 removed the "by other means" language relied upon by the

Court of Appeals in holding the trial court's order valid. For this reason,

83 769 S.W.2d 56 (Ky.App. 1988). 84 Id. at 62. 85 Id.

29 Davenport's analysis of ex parte communications with expert witnesses is

outdated.

But simply because the language that authorized the court's order in

Davenport has been removed, that does not shift Davenport into a tacit

abolition of litigants' ability to seek ex parte meetings with the opposing party's

physicians. One crucial fact renders Davenport inapplicable as an indictment

against ex parte contacts with physicians: it concerns physicians retained as

expert witnesses. Once retained as experts, CR 26.02(4)—both the version

extant in Davenport and the iteration currently in force—lists exclusively the

manner in which discovery may be obtained. 86 So removal of the language

permitting authorization of discovery "by other means" vitiates ex parte

interviews with physicians retained as expert witnesses, but no such language

limits discovery from nonexpert fact witnesses to the formal methods

authorized in our Civil Rules.

The case that we find most applicable to the present controversy evaded

citation by both the trial court and the Court of Appeals. In Roberts v.

Estep, 87—the only case touching on this issue to be decided by this Court—we

held that no Kentucky law prohibits a defendant from contacting ex parte the

plaintiff's treating physicians. 88 Caldwell attempts to undercut the strength of

this holding noting Roberts was a workers' compensation case and

86 CR 26.02(4) ("Discovery of facts known and opinions held by experts . . . may be obtained only as follows . . . ."). 87 845 S.W.2d 544 (Ky. 1993). 88 Id. at 547.

30 KRS 342.020 requires waiver of any privilege or confidentiality when filing

claim. 89 Caldwell correctly states the law but not its impact on the Court's

decision.

Roberts does not cite to KRS 342.020 and waiver, compulsory or

otherwise. The Court concluded that the defendant's ex parte contact with

plaintiff was not rendered impermissible by Kentucky law; it did not conclude

that waiver under KRS 342.020(8) authorized the defendant's contact. Had the

Court in Roberts based its decision on KRS 342.020, we think it would have

said so. We will not read into the Court's analysis law that is not patent in its

opinion.

In support of her argument against the trial court's order, Caldwell cites

statutory and case law from various jurisdictions that prohibit ex parte

contacts with treating physicians. While we respect the decisions of our sister

states, we nonetheless find their citation unpersuasive. Most notably this is

because most of the cited decisions were based on state laws that have no

counterpart in Kentucky law—namely the physician-patient privilege and

statutes explicitly prohibiting ex parte interviews with treating physicians.

That other states found it prudent to adopt a physician-patient privilege or to

prohibit by statutory enactment the type of contacts CaldWell currently

challenges does little to alter our analysis of Kentucky law.

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

KRS 342.020(8).

31 litigant's ability to conduct informal ex parte interviews when the fact witness

to be interviewed is a treating physician. 90 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

So Kentucky law cannot be "contrary" to HIPAA as pertaining to ex parte

interviews with treating physicians because our law speaks to their viability. 91

Weconlud,thrfaenolimtsadefn'biltyo

request an ex parte interview with the plaintiff's treating physician. But the

physician's ability to disclose the plaintiff's 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. 92

90This holding, of course, does not vitiate any professional duties of confidentiality by which physicians may be bound. That those duties do not carry the weight of law does not render them inapplicable or unenforceable in the proper venue. 91 See Arons, 880 N.E.2d at 842 ("[W]here there is a State provision and no comparable or analogous federal provision, or the converse is the case, there is no possibility of preemption because in the absence of anything to compare there cannot be a contrary requirement . . . .") (citing Standards for Privacy of Individually Identifiable Health Information, 64 Fed.Reg. 59,918, 59,995) (Nov. 3, 1999) (quotation marks and alterations omitted). 92 See Holman, 785 N.W.2d at 108-09 ("HIPAA does not require a trial court to grant a motion for a protective order. Therefore, a trial court retains its discretion .. . to issue protective orders and to impose conditions on ex parte interviews.").

32 C. The Challenged Order Does not Satisfy HIPAA's Procedural Require- ments for the Disclosure of Protected Health Information; but Because the Order Expressly Withholds the Necessary Authorization, a Writ Need not Issue.

Having determined the law applicable to ex parte interviews with treating

physicians, we must now apply that law to the facts at hand. After little more

than a cursory review of the challenged trial court order, it becomes manifest

that the order does not satisfy the requirements of HIPAA to permit disclosure

of protected health information during ex parte interviews.

As addressed above, for disclosure of protected health information to

comply with HIPAA, a litigant must first obtain an order authorizing disclosure

under 45 C.F.R. § 164.512(e)(1)(i). The instant order does not meet this

requirement. In fact, the order acknowledged the need for authorization to

permit disclosure of Caldwell's protected health information by her physicians

yet declined to authorize disclosure.

The present order has done nothing more than maintain the status quo.

It has effectively, and correctly, stated the status of the law currently: defense

counsel may seek an ex parte interview with Caldwell's treating physicians, but

those physicians may not disclose her protected health information without

facing HIPAA sanctions. Indeed, the order states as much—"the treating

physician may be unable . . . to speak with counsel absent specific

authorization from the [c]ourt permitting him to do so. The [c]ourt is vested

with the discretion to provide such authorization. However, the [c]ourt is not

inclined to do so in the instant case . . . ."

33 We decline to exercise our discretion to issue a writ in this instance even

though any ex parte disclosure of protected health information would surely

violate HIPAA. This injury is too speculative to merit such an extraordinary

remedy. The order leaves the treating physicians' participation in the ex parte

interview and the disclosure of Caldwell's medical information—if they do

choose to undertake the interview—to the doctors' discretion. The harm is not

immediate enough to require an extraordinary remedy to rectify Caldwell's

potential grievance.

Further, the trial court's order does nothing to displace the duty of

privacy placed on healthcare providers by HIPAA's privacy regulations. The

order does not supplant or alter the duty placed on the physicians possessing

Caldwell's protected health information. The order's authorization of the

ex parte contacts that Castro sought was also unnecessary based on our

analysis; Castro's counsel did not need the court's blessing to seek an ex parte

meeting with Caldwell's physicians. The meetings, even without the challenged

order, would be, of course, at the discretion of the physician, just as they are

under the order.

Given these circumstances, we find the trial court's order to be an

accurate statement of the law as it is presently situated and that any potential

HIPAA violation is too speculative to merit extraordinary relief in the form of a

writ. So we affirm the decision of the Court of Appeals denying Caldwell's

petition for a writ.

34 III. CONCLUSION.

Based on the foregoing, 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).

We conclude that the order challenged in the instant proceeding did not

comply with 45 C.F.R. § 164.512(e)(1)(i), and any disclosures made during

ex parte interviews authorized by the order would be in violation of HIPAA. But

the order is explicit in its failure to authorize disclosure and its grant of

permission allowing Castro's counsel to seek ex parte interviews with Caldwell's

physicians was not necessary to authorize this practice. So we find the

challenged order to be nothing more than an accurate recitation of the law

pertaining to ex parte interviews with the opposing party's treating physicians

and does not merit an extraordinary writ of prohibition.

All sitting. All concur. Keller, J., concurs by separate opinion in which

Barber and Noble, JJ., join.

35 KELLER, J., CONCURRING: I concur with the result of the majority

opinion but write separately because I believe that it is time for Kentucky to

adopt a general physician-patient privilege. As the majority states, "We have

heretofore not identified a cognizable right to a privilege in medical

communications and again decline to do so today." That statement is only

partially correct. KRE 507 recognizes that communications between a

psychotherapist and patient are privileged. A psychotherapist is defined, in

part, as "[a] person licensed by the state of Kentucky, or by the laws of another

state, to practice medicine . . . while engaged in the diagnosis or treatment of a

mental condition." KRE 507(2)(A) (emphasis added). Thus, Kentucky does

recognize that medical communications are privileged as long as they occur

within the mental health setting. It is understood that sensitive and highly

personal information is exchanged between a patient and his or her

psychotherapist. Likewise, a patient being treated by a physician for purely

physical ailments must reveal sensitive health information in order to facilitate

treatment. I can discern no logical reason for the exclusion of medical

communications regarding physical health from privilege when

communications regarding mental health are privileged.

I note that the other privileges in Article V of the KRE, with the exception

of the spousal privilege, prohibit disclosure, not just testimony. Therefore, a

general physician-patient privilege should, if similar to the psychotherapist-

patient privilege, also prevent disclosure of privileged communications unless a

36 patient places her medical condition into controversy and the information is

obtained in conformity with the rules of procedure.

37 COUNSEL FOR APPELLANT:

Eric M. Lamb Lamb 86 Lamb, PSC

Erwin A. Sherman Sherman and Osborne

APPELLEE:

Judge Arch Cox McKay Chauvin Jefferson Circuit Court, Division 8

COUNSEL FOR REAL PARTY IN INTEREST, DR. FRANK P. CASTRO, D/B/A PALO ALTO SPINE, LLC:

Donald Kenneth Brown, Jr. Casey Alan Krill Mark Edward Hammond Robert Clayton Veldman O'Bryan, Brown 86 Toner, PLLC

COUNSEL FOR AMICUS CURIAE KENTUCKY JUSTICE ASSOCIATION:

H. Philip Grossman Grossman 86 Moore, PLLC

Paul A. Casi, II Jeffrey Wayne Adamson Paul A. Casi, II, P.S.C.

Kevin Crosby Burke

COUNSEL FOR AMICUS CURIAE KENTUCKY DEFENSE COUNSEL:

Bradley A. Case Dinsmore 86 Shohl, LLP