Holmes v. Nightingale

2007 OK 15, 158 P.3d 1039, 2007 Okla. LEXIS 19, 2007 WL 841340

• Court: Supreme Court of Oklahoma
• Decided: March 20, 2007
• Docket: 103,762
• Status: Published

Opinions

WATT, J.

11 We assume original jurisdiction to decide an issue not addressed in a published opinion ¹ since the enactment in. 1996 of the Health Insurance Portability and Accountability Act (HIPAA),² 42 U.S.C. § 13200, et. seq.³ The initial issue presented is whether, when an individual has clearly placed mental or physical conditions in issue by filing suit,⁴ a court order allowing, but not mandating, oral communications with health care providers violates HIPAA's confidentiality provisions.

[ 2 We hold that a court order permitting, rather than mandating, oral communication with health care providers entered as a result of an individual clearly placing mental or physical conditions in issue by filing suit does not contravene HIPAA's confidentiality requirements. Our determination is supported by: 1) 45 CFR. § 164.512(e)(1) governing the procedural requirements and safeguards imposed by HIPAA which clearly anticipates disclosures of protected health information pursuant to a court order;⁵ 2) extant federal jurisprudence; ⁶ and 3) this Court's pre-HI-PAA decisions in Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151 and Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 recognizing that where there has been a waiver of the physician/patient privilege pursuant to § 19(B)(1) of title 76,⁷ judicial authority may not be utilized to facilitate or impede ex parte communications with the plaintiff's health care providers.

18 Our favorable resolution of the issue regarding ex parte communications requires us to examine the order issued for compliance with 76 0.8. Supp.2005 § 19 and 12 0.5. Supp.2004 § 2503(D)(8).⁸ Furthermore, we must determine whether the order adequately advises physicians that they may not be compelled to participate in oral ex parte communications.

4 Although the order refers to the statutory requirements of 76 0.8. Supp.2005 § 19 and 12 0.8. Supp.2004 § 2508(D)(8), we hold that its language is overly broad and that it falls short of meeting the statutorily imposed standards. The statutes clearly limit any discoverable materials to information relevant to the claims or defenses asserted in the malpractice action or to the injury or death in litigation. Furthermore, the order does not advise clearly that no physician may be compelled to participate in ex parte communications. Therefore, jurisdiction is assumed, the writ is granted and the cause is remanded for entry of an order consistent with this opinion.

FACTS

T5 On October 14, 2005, Theresa Lee Elam (Elam/patient/decedent) was injured in an automobile accident. Elam died on February 283, 2006, while under the care of Interim Healthcare of Tulsa and St. John Health System, Inc. On April 11, 2006, Holmes filed suit on behalf of Elam's estate asserting claims of medical negligence against the health care providers. The following week, an amended petition was filed identifying St. John Medical Center, Inc. as a defendant and medical provider.

16 Following Holmes' failure to execute allegedly HIPAA-compliant medical authorizations provided by St. John, the hospital filed a motion to dismiss or in the alternative an application for release of protected health information on May 19, 2006. Interim filed a notification of intent to obtain protected health care information on June 27, 2006. In an order signed on that date and filed on July 5, 2006, the trial court ordered the release of Elam's protected health care information "pursuant to 76 0.8. § 19(B), 12 0.8. § 2508(D)(8) and 45 C.F.R. § 164.512(0)(10)() of the Health Insurance Portability and Accountability Act" which authorized the patient's health care providers to "orally communicate and to discuss such 'protected health information' if they choose with the parties' attorneys of record in this action." ⁹

17 Holmes filed an application to assume original jurisdiction and petition for writ of prohibition on September 18, 2006. The health care providers filed their responses on September 29th.

T8 A COURT ORDER PERMITTING, RATHER THAN MANDATING, ORAL COMMUNICATION WITH HEALTH CARE PROVIDERS ENTERED AS A RESULT OF AN INDIVIDUAL CLEARLY PLACING MENTAL OR PHYSICAL CONDITIONS IN ISSUE BY FILING SUIT DOES NOT CONTRAVENE HIPAA'S CONFIDENTIALITY REQUIREMENTS.

19 Holmes argues that the trial court's order allowing ex parte oral communications with Elam's health care providers violates HIPAA's confidentiality requirements. Nevertheless, she recognizes that HIPAA allows the disclosure of protected health information pursuant to court order.¹⁰ Essentially, Holmes contends that only an order compelling the release of protected health care information, rather than an order allowing such release, will satisfy HIPAA requirements. In contrast, the health care provider asserts that the order issued is HI-PAA compliant and conforms with this Court's holdings in Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 and Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151. Here, we address Seaberg and Johnson only to the extent that they relate to the issuance of such an order-not as to whether the order issued conforms in all respects with these opinions.

110 a) Federal regulations governing the procedural requirements and safeguards imposed by HIPAA clearly anticipate disclosures of protected health information pursuant to a court order.

T11 Congress enacted HIPAA in 1996 entrusting the Secretary of the Department of Health and Human Services (Secretary) with the task of the creation of national standards to ensure the integrity and confidentiality of individually identifiable health information.¹¹ Thereafter, the Secretary promulgated 45 CFR. § 164.512. Subsection (e) of the regulation specifically addresses disclosures for judicial and administrative procedures providing two situations in which covered entities may release protected health information:

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

() 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 ..." [Emphasis supplied.]

The clear language of the regulation anticipates not only that there may be disclosures pursuant to the filing of a lawsuit but that the disclosures may be allowed where a court order so provides. Here, the first condition is met-the court order clearly allows such disclosures.

112 The defendant and the medical provider argue essentially that, as long as there is an order signed by a judge, there is no limit on the seope of disclosure of protected health information under section 19(B) or HIPAA. They argue that, because the HI-PAA regulations provide for disclosure "in response to an order of a court" under seetion 164.512(e)(1)(), no restriction on the seope of disclosure applies. That argument, however, ignores the rest of the sentence which requires the "covered entity [to disclose] only the protected health information expressly authorized by such order."¹² Clearly a limitation on the seope of permitted disclosure is imposed. The source of that limitation is the privacy requirements erfu-merated at § 164.512(e)(1)Gi-vi). The privacy requirements of HIPAA apply whether or not there is court authorization for the disclosure of protected medical information. In other words, HIPAA does not prohibit ex parte communication through a HIPAA-com-pliant court authorization. This holding is supported by federal jurisprudence.

113 b) Although there is little federal jurisprudence on the issue of ex parte communications under HIPAA, the existing case law supports a finding that such contact should be allowed when, as here, a court order exists allowing the communication.

14 Holmes relies on two cases-Law v. Zuckerman, 307 F.Supp.2d 705 (D.Md.2004) and Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015 (S.D.Cal.2004)-for the proposition that ex parte contacts are prohibited under HIPPA and that protected medical information may only be released pursuant to formal discovery procedures. The reliance is misplaced.

1 15 The Law court determined that Maryland law, which did not prohibit ex parte communications between a lawyer and the treating physician of an adverse party, was not as stringent as HIPAA. Therefore, the federal law was found to preempt the Maryland statute. Nevertheless, the federal court recognized that disclosures should be allowed when strict compliance with HIPAA occurred. Finally, the Law court determined that: 1) defense counsel had exercised reasonable diligence in attempting to guarantee that physician contacts did not violate HI-PAA; 2) the Secretary-promulgated rules restrict the ability of health care providers to divulge patient medical records without express consent of the patient or pursuant to a court order; and 3) a court order allowing either party to speak with the plaintiff's physician about issues set forth in the party's medical records effectively remedied any potential HIPAA violation.

16 In Crenshaw, the court held that defense counsel's ex parte communications with the opposing party's personal physicians fell beyond HIPAA's requirement that confidential medical information be disclosed pursuant to a court order, subpoena or discovery request. The federal court's determination rested on a finding that all such disclosures must be accompanied by assurances to the healthcare provider that reasonable efforts had been made by the party to secure a qualified protective order. Because no protective order had issued, the Crenshaw Court determined that HIPAA's disclosure requirements were violated.

T17 Both Law and Crenshaw were analyzed in Bayne v. Provost, 359 F.Supp.2d 234, 239 (N.D.N.Y.2005). The federal court determined that the true import of the two causes was that there is no bright line HIPAA rule barring all ex parte discussions. Rather, that such contacts are appropriate once the protections required by HIPAA are met.¹³ The New York Court recognized three instances in which oral communications were appropriate: 1) where, as here, discovery requests are accompanied by a court order; 2) when a medical provider receives satisfactory assurances that proper notice has been given to the protected person; or 8) when the party attempting to secure the health information has secured a qualified protective order either by agreement or court involvement.

118 c) A court order allowing, rather than mandating, disclosure of protected healthcare information through ex parte communications conforms with the pre-HIPAA determinations in Seaberg v. Lockard and Johnson v. District Court of Oklahoma County holding that where there has been a waiver of the physician/patient privilege pursuant to 76 0.8. Supp.2005 § 19, judicial authority may not be utilized to facilitate or to impede ex parte communications with a plaintiff's health care providers.

{19 Our analysis here is limited to the issue of whether ex parte communications are allowed under Oklahoma jurisprudence. Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151 involved a medical malpractice action. The trial court issued an order finding the privilege involving protected healthcare information waived and requiring discovery by ex parte communication. The Johnson Court issued a writ of prohibition to prevent enforcement of the order. The Court held that it was beyond the district court's authority to compel discovery by ex parte communication.

120 Following the teachings of Johnson, the memorandum opinion in Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 held that § 19's ¹⁴ waiver of the physician/patient privilege in a personal injury action did not authorize the district court's pretrial declaration that no privilege existed. Although the Seaberg Court determined that the law sanctioned voluntary ex parte communications with physicians and other healthcare providers where no legal privilege existed, it held that judicial authority could not be exercised to facilitate or to impede such informal communications.

121 THE ORDER PRESENTED IS OVERLY BROAD. IT DOES NOT CONFORM WITH THE STATUTORY REQUIREMENTS OF 76 0.8. Supp.2005 § 19 AND 12% O.8. Supp.2004 § 2503(D)(3) NOR DOES IT ADEQUATELY ADVISE PHYSICIANS THAT THEY MAY NOT BE COMPELLED TO PARTICIPATE IN EX PARTE COMMUNICATIONS.

122 While we agree with the health care providers that a court order permitting, rather than mandating, oral communication with health care providers entered as a result of an individual clearly placing mental or physical conditions in issue by filing suit does not contravene HIPAA's confidentiality requirements, we must now determine whether the order presented conforms with the statutory requirements of 76 0.8. Supp.2005 § 19¹⁵ and 12 0.8. Supp.2004 § 2503(D)(@).¹⁶ Fur thermore, we examine the order's language in light of the risks physicians face when disclosing protected health care information.

123 a) The court order does not conform with the statutory requirements of 76 0.8. Supp.2005 § 19 and 12 O.S8. Supp. 2004 § 2503(D)(3) precluding general disclosure of all of a party's medical records and restricting discovery to materials relevant to any issue in the malpractice action or to the injury or death in litigation.

$24 We have determined that 45 C.FE.R. § 164.512 clearly anticipates the issuance of court orders allowing ex parte communications with physicians. The same regulation limits the information to be disclosed to that "expressly authorized by such order." ¹⁷ Here, the order allows access inclu sive of, but not limited to, "all examinations, treatment, radiographic imagining films, emergency room records, outpatient records, hospital charts, billing statements, or results of any diagnostic study" and to "any record of any health care providers care and treatment of Teresa Lee Elam." ¹⁸ [Empha sis supplied.] The permitted disclosure is too broad.

125 Information which may be released once a party places its medical condition in issue is limited by 76 O.S. Supp.2005 § 19 and 12 0.8. Supp.2004 § 2508(D)(8) along with causes interpreting the statutory scheme. Our jurisprudence makes it clear that these statutes preclude the general disclosure of all of a party's medical records and restrict discovery to materials relevant to any issue in the malpractice action or to the injury or death in litigation.

' 26 We consider the limitations placed on ex parte communications under the same causes which anticipate such disclosures. Johnson v. District Court, 1987 OK 47, ¶ 4, 738 P.2d 151 provides that "[the scope of discovery under section 19(B) includes any material relevant to any issue in the malpractice action." Seaberg v. Lockard, 1990 OK 40, ¶ 3, 800 P.2d 230 reaffirmed Johnson, holding that "(allthough the law sanctions voluntary ex parte communications with physicians and other health providers where no legal privilege is deemed to exist, judicial authority may not be exercised to facilitate or impede such information communications." [Emphasis in original.] Seaberg went on to explain that the waiver of privilege in section 19(B) "is to be viewed as self-executing" and that section 19(B) "does not contemplate a judicial order directing or authorizing physicians or other health care providers to make themselves available for ex parte interviews by the legal representatives of a defendant." Further, the Seaberg Court recognized that the waiver of patient privilege found in section 19(B) "is imposed by force of law and stands restricted to the injury or death in litigation."

1 27 In Higginbotham v. Jackson, 1994 OK 8, ¶ 1, 869 P.2d 319, we recognized that no statutory discovery method required a plaintiff in a personal injury lawsuit to execute, in favor of the defendant, a general medical authorization entitling the defendant to obtain all of the plaintiff's medical records. In considering the breadth of § 2508(D)(8), the Court stated "12 0.8. § 2508(D)(8) qualifies the physician/patient privilege 'to the extent that an adverse party in said proceeding may obtain relevant information regarding said condition by statutory discovery.'" Higginbotham conforms with the teachings of Johnson that "[the seope of discovery under section 2508(D)(8) is limited to the issue of the condition raised as an element of the claim or defense."

128 The challenged order is deficient under both 76 O.S. Supp.2005 § 19¹⁹ and 12 O.S. Supp.2004 § 2503(D)(8).²⁰ It places no limit on the seope of the medical information to be disclosed. It is not confined to "material relevant to any issue in the malpractice action" as required by Johnson, nor is it "restricted to the injury or death in litigation" as required by Seaberg. Furthermore, it is too broad under Higginbotham, allowing the health care providers access to "any ree-ord of any health care providers care and treatment of Teresa Lee Elam"²¹ rather than limiting it to the condition alleged to have caused the patient's injury and resulting death.

129 b) An order allowing ex parte physician communications should clearly provide that no physician may be compelled to participate in oral ex parte communications.

130 Pursuant to 42 U.S.C. § 1320d-6 a physician disclosing protected health care information under HIPAA is subject to severe penalties ranging from $50,000 to $250,000 in fines and/or imprisonment running from less than a year to a maximum of not more than 10 years.²² In light of the exposure, any physician should be advised by the Court's order allowing ex parte communication that such correspondence is "purely voluntary and may not be compelled by any party." Although the order here contains permissive language regarding any physi-clan's participation, it does not clearly delineate that such communications may not be compelled.

CONCLUSION

131 HIPAA does not expressly bar ex parte communications but does require certain procedures. One measure by which such information may be sought is pursuant to a court order specifying the substance of the information to be released.²³ We hold that an order, entered as a result of an individual placing mental or physical conditions in issue by filing suit and containing clearly permissive language in relation to ex parte communications, does not contravene HIPAA's confidentiality requirements.²⁴ The determination is consistent with: procedural requirements and safeguards imposed by HIPAA;²⁵ extant federal jurisprudence; and this Court's pre-HIPAA determinations in Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151 and Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230.

132 The language of the challenged order does not conform with the requirements of 76 O.S. Supp.2005 $ 19(B)(1)²⁶ and 12 O.S. Supp.2004 § 2503(D)(8).²⁷ It does not limit disclosure to a mental or emotional condition of the patient that is relevant to the claims or defenses asserted in the malpractice action. The order has the potential to allow defense counsel in the malpractice action to obtain all medical and psychological health information of the patient, even information that has nothing to do with the malpractice action. Although the order contains permissive language regarding the participation of any physician in ex parte communications, it does not clearly advise doctors that such exchanges may not be compelled. Therefore, we assume jurisdiction, grant the writ and remand the cause for entry of an order consistent with this opinion.²⁸

ORIGINAL JURISDICTION ASSUMED; WRIT GRANTED; CAUSE REMANDED.

ALL JUSTICES CONCUR,

1 . In an unpublished order, filed on February 27, 2006, we determined that disclosure of protected health care information pursuant to court order was permissible under HIPAA. The order in # 102,964 Huffman v. Honorable Ronald Shaffer, provides in pertinent part:

"... An order requiring the real party in interest to execute an authorization for the release or disclosure of medical 'information'-oral or written-would not contravene Seaberg, so long as voluntary, informal ex parte communication is merely allowed, not compelled or required. Entities or health care providers subject to the restrictions of HIPAA may avert violation of the Act by limiting statements, responses, or other forms of disclosure to individually identifiable health information encompassed within the § 19(B) waiver...." The vote on the unpublished order appears as: Watt, C.J., Winchester, V.C.J., Lavender, Har-grave, Kauger, Edmondson, Taylor, Colbert, JJ., concur. Opala, J., concurs in result.

2 . Although we have chosen to refer to the act in its shorthand from as "HIPAA," we note that legal research reveals that the Act has been referred to by other courts as "HIPPA" and "HIPA" and that, in common parlance, the most prevalent reference appears to be to "HIPPA"'-especially in the examination of patient rights' forms which also reveal the same inconsistencies.

3 . Interim appears to argue that original jurisdiction should be assumed only when an abuse of discretion has occurred requiring this Court's intervention through issuance of a writ. The assertion is not consistent with our jurisprudence. Ward Petroleum Corp. v. Stewart, 2003 OK 11, 64 P.3d 1113 [Petition for certiorari recast as petition for writ of prohibition; original jurisdiction assumed; writ denied.]; Grimes v. City of Oklahoma City, 2002 OK 47, 49 P.3d 719 [Original jurisdiction assumed; declaratory relief denied; writs of mandamus and prohibition denied.]; World Pub. Co. v. Miller, 2001 OK 49, 32 P.3d 829 [Writ denied.]. Furthermore, we may assume original jurisdiction to address issues in discovery matters which are primarily those of first impression. Heffron v. District Court of Oklahoma County, 2003 OK 75, ¶ 4, 77 P.3d 1069; St. Clair v. Hatch, 2002 OK 101, ¶ 1, 62 P.3d 382.

4 . Title 76 0.S. Supp.2005 § 19 (B)(1) providing:

"In cases involving a claim for personal injury or death against any practitioner of the healing arts or a licensed hospital, or a nursing facility or nursing home licensed pursuant to Section 1-1903 of Title 63 of the Oklahoma Statutes arising out of patient care, where any person has placed the physical or mental condition of that person or deceased person by or through whom the person rightfully claims, that person shall be deemed to waive any privilege granted by law concerning any communication made to a physician or health care provider with reference to any physical or mental condition or any knowledge obtained by the physician or health care provider by personal examination of the patient; provided that, before any communication, medical or hospital record, or testimony is admitted in evidence in any proceeding, it must be material and relevant to an issue therein, according to existing rules of evidence. Psychological, psychiatric, mental health and substance abuse treatment records and information from psychological, psychiatric, mental health and substance abuse treatment practitioners may only be obtained provided the requirements of Section 1-109 of Title 43A of the Oklahoma Statutes are met."

No issue of waiver of the privilege exists here as the treatment received by Elam is the basis of the negligence claim. Because the waiver provision is substantially similar to the statutory language considered in Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 and Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151, reference is to the current statute.

5 . 45 C.F.R. § 164.512(e)(1) providing in pertinent part:

"Standard. Disclosures for judicial and administrative proceedings.

(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 ..." [Emphasis provided.]

6 . Bayne v. Provost, 359 F.Supp.2d 234, 240 (N.D.N.Y.2005) [Allowing ex parte communications with health care providers when "court order' exception to HIPAA was present.]. See also, In re Vioxx Products Liability Litigation, 230 F.R.D. 473, 477 (E.D.La.2005), modified on other grounds, 2005 WL 2036797 (E.D.La.2005) [Just option in the case was to protect the relationship between a doctor and patient by restricting defendants from conducting ex parte communications with plaintiffs' treating physicians but allowing plaintiffs' counsel to engage in ex parte interviews with those doctors who have not been named as defendants.]. But see, Crenshaw v. MONY Life Ins. Co. 318 F.Supp.2d 1015, 1028 (S.D.Cal.2004) [Providing that HIPAA does not authorize ex parte contacts with healthcare providers.]; Law v. Zuckerman, 307 F.Supp.2d 705, 712 (D.Md.2004) [Although defense counsel's pre-trial contacts with physician violated HIPAA, remedy of precluding defense counsel from having any further ex parte communications with physician was not warranted.]. See also, discussion of additional case law in footnote 13, infra.

7 . Title 76 O.S. Supp.2005 § 19, see note 4, supra.

8 . Title 12 0.S. Supp.2004 § 2503(D)(3) providing in pertinent part:

''The privilege under this Code as to a communication relevant to the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon that condition as an element of the patient's claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense is qualified to the extent that an adverse party in the proceeding may obtain relevant information regarding the condition by statutory discovery ..."

9 . The trial court's order, filed on July 5, 2006, providing in pertinent part:

"... ORDER AUTHORIZING RELEASE OF PROTECTED HEALTH INFORMATION

This matter comes before this Court for determination on the 27th day of June, 2006, on the Motion of Defendant, St. John Medical Center, Inc., for Order Directing Release of Protected Health Information. Having reviewed the pleadings of the parties, the Court finds that the Plaintiff has placed the physical condition of Teresa Lee Elam in issue by the filing of this litigation and has waived any privilege granted by law concerning any communication made to a physician or other health care provider with reference to the physical condition or any knowledge obtained by the physician or health care provider by personal examination of Teresa Lee Elam.

Accordingly, pursuant to 76 0.S. § 19(B), 12 O.S. § 2503(D)(3), and 45 CFR. § 164.512(e)(1)(i) of the Health Insurance Portability and Accountability Act ("HIPAA"), the Court FINDS and it is hereby ORDERED, ADJUDGED, AND DECREED by the Court as follows:

1. Health care providers of Teresa Lee Elam, (ie., 'covered entities'), are authorized to disclose 'protected health information' (P.H.L) which includes documentation related to hospitalizations including but not limited to all examinations, treatment, radiographic imaging films, emergency room records, outpatient records, hospital charts, billing statements, or results of any diagnostic study and any other materials pertinent to Ms. Elam's medical condition;

2. Health care providers of Teresa Lee Elam are authorized to testify in jury trial, depositions, and before this Court about information contained in any record of any health care providers care and treatment of Teresa Lee Elam;

3. Health care providers of Teresa Lee Elam are authorized to orally communicate and to discuss such 'protected health information' if they choose with the parties' attorneys of record in this action; and

4. All medical records obtained pursuant to this Order shall be made available and provided to all parties of this litigation. Further, the parties and their counsel may discuss with each other any protected health information of Teresa Lee Elam.

IT IS SO ORDERED this 27th day of June, 2006..."

10 . Holmes' brief in support of application to assume original jurisdiction and petition for writ of mandamus providing in pertinent part at p. 9:

"... Section 164.512(e) sets for [sic] the standards for disclosures for judicial and administrative proceedings. Since the case below is a judicial proceeding, it appears that this sub-part would apply here. Section 164.512(e)(1) deals with permitted disclosures and states: A covered entity may disclose protected health information in the course of any judicial or administrative proceeding ... in response to an order of a court ... or ... in response to a subpoena, discovery request or other lawful process ... if [either the other side has been given notice of the request or there is a qualified protective order in place]... ."

Admissions in a brief may be considered as a supplement to the appellate record. McClure v. ConocoPhillips Co., 2006 OK 42, 17, 142 P.3d 390; King v. King, 2005 OK 4, 116, 107 P.3d 570; Keating v. Edmondson, 2001 OK 110, 19, 37 P.3d 882.

11 . See generally, 42 U.S.C. § 13200-2. See also, Smith v. American Home Products Corp., note 23, infra.

12 . The entire text of the provision permits disclosures in the course of any judicial proceeding: "(1) 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." See, 45 C.F.R. § 164.512(e)(1), note 5, supra.

13 . The court noted in Bayne v. Provost, see note 6, supra, promulgated less than a year ago, that there was a paucity of law to assist on the analysis of whether ex parte communications are allowed under HIPAA. Prior to Bayne's determination, two unpublished decisions had been promulgated which were contrary to the New York Court's decision in Bayne: In re Vioxx Products Liability Litigation, 2005 WL 2036797 (E.D.La.2005) and EEOC v. Boston Market Corp., 2004 WL 3327264 (E.D.N.Y.2004). The jurisprudential landscape has changed little since last January. The one published opinion since that time provides that because HIPAA does not directly address ex parte communications, they may be allowed under state law. Smith v. American Home Products Corp., see note 23, infra. In an unpublished opinion in Hulse v. Suburban Mobile Home Supply Co., 2006 WL 2927519 (D.Kan.2006), the Kansas Federal Court determined that where there was a request for a court order allowing the production of medical information and ex parte contact all the requirements of HIPAA had been met. See also, In re Vioxx Products Liability Litigation, note 6, supra.

¹⁴

15 . Id.

16 . Title 12 O.S. Supp.2004 § 2503(D)(E), see note 8, supra.

17 . 45 C.F.R. § 164.512, see note 5, supra.

18 . The trial court's order, filed on July 5, 2006, see note 9, supra.

¹⁹

20 . Title 12 O.S. Supp.2004 § 2503(D)(3), see note 8, supra.

21 . The trial court's order, filed on July 5, 2006, see note 9, supra.

22 . Title 42 U.S.C. § 1329d-6(b) provides:

"Penalties

A person described in subsection (a) of this section shall--

(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;

(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and

(3) if the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both."

23 . Smith v. American Home Products Corp., 372 N.J.Super. 105, 855 A.2d 608, 621 (2003).

24 . The trial court's order, filed on July 5, 2006, see note 9, supra.

25 . 45 CFR. § 164.512(e)(1), see note 5, supra.

26 . Title 75 O.S. Supp.2005 § 19(B)(1), see note 4, supra.

²⁷

28 . In reaching our decision today, we consider federal precedent. Nevertheless, our determination rests squarely within Oklahoma law which provides bona fide, separate, adequate and independent grounds for our decision. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).