Lovelace v. Medstar Health, Inc.
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
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LISA LOVELACE, )
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Plaintiff, )
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v. ) Civil Action No. 19-cv-001154 (ESH)
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WASHINGTON HOSPITAL ) CENTER CORPORATION, d/b/a, ) MEDSTAR WASHINGTON HOSPITAL ) CENTER, et al., )
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Defendants. )
_________________________________________ )
MEMORANDUM OPINION & ORDER Before the Court is defendant Washington Hospital Center Corporation d/b/a Medstar Washington Hospital Center’s (“MWHC”) motion for a protective order. (See Def.’s Mem. of Law, ECF No. 30.) MWHC requests that the Court enter an order permitting it to engage in ex parte communications with plaintiff Lisa Lovelace’s treating physicians, arguing that utilizing formal discovery to speak to her numerous treating physicians would be costly and inefficient, and that such an order would be consistent with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and D.C. law. Lovelace opposes the entry of such an order. (See Pl.’s Opp., ECF No. 31.) For the reasons stated below, the Court will grant defendant’s motion in part.
FACTUAL BACKGROUND
Plaintiff Lisa Lovelace was admitted to MWHC’s burn intensive care unit on January 25, 2016, after she was identified as presenting with symptoms of Stephens-Johnson Syndrome.
(See Compl. ¶¶ 15, 16, ECF No. 1.) She alleges that “[w]hile she was being treated at the burn ICU, Defendant’s employees failed to properly treat [her] eyes, resulting in her total blindness.” (See Pl.’s Opp. at 1.) Lovelace brought this action against MWHC on April 22, 2019, with claims of medical negligence; negligent hiring, training, supervision, and retention; and lack of informed consent. (See Compl.) She alleges that she is entitled to damages of at least $10,000,000. (See id.)
On May 12, 2020, the parties filed a joint status report requesting the Court’s assistance with a discovery dispute. (See Joint Status Report, ECF No. 29.) Defendant identified approximately 36 treating physicians, as well as rehabilitative counselors, who “are believed to have personal information that is calculated to lead to the discovery of admissible evidence.” (See id. at 2.) Because of the large number of treating physicians, many of whom are beyond the Court’s subpoena power, defendant seeks to contact them ex parte, rather than engage in formal discovery. Plaintiff objects, arguing that allowing defendant to make such contact would be destructive of the patient/physician relationship and possibly lead to intimidation of her healthcare providers, and that defendant has not shown good cause why it is necessary. After a conference call with counsel, the Court ordered additional briefing. (See ECF No. 30, 31.)
ANALYSIS
Federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) provide that a patient’s protected health information may be disclosed “in the course of any judicial or administrative proceeding . . . [i]n 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). In Street v. Hedgepath, 607 A.2d 1238 (D.C. App. 1992), the District of Columbia Court of Appeals stated
that “ex parte interviews with a treating physician are a permissible means of informal discovery when the plaintiff has put the medical condition of that physician’s patient at issue by filing a lawsuit.” Id. at 1247. While Street was decided pre-HIPAA, multiple judges in the Superior Court, see, e.g., Chatman v. Pearson, No. 2016-CA-005909 M (JAD) (D.C. Super. Apr. 21, 2017), as well as Judge Kollar-Kotelly of this Court, concluded that it still reflects District of Columbia law that ex parte interviews are generally permissible in medical negligence cases. See Lovecchio v. Washington Metro. Area Transit Auth., 319 F. Supp. 3d 262, 264 (D.D.C. 2018). Therefore, she held that “no authority prohibits Plaintiff’s medical providers from disclosing Plaintiff’s protected health information during ex parte interviews if this Court permits Defendant to conduct such interviews and issues a protective order delineating the scope of such disclosure,” thus satisfying HIPAA. Id. (emphasis in original).
Judge Kollar-Kotelly went on to note that although ex parte interviews are allowed under District of Columbia and federal law, “[t]he Court is unaware of any case law or HIPAA provision establishing that Defendant is entitled to conduct ex parte interviews.” See id. (emphasis in original). While there is no generally-accepted standard by which to analyze these motions, she determined that the “good cause” standard from Federal Rule of Civil Procedure 26 would be appropriate. See id. at 265. In Lovecchio, “good cause” was found due to, inter alia, the plaintiff’s large number of treating physicians, no non-speculative concerns of intimidation by defendants if they were allowed ex parte interviews, and “Defendant’s desire to test its legal theories through ex parte interviews.” See id. at 265-66. As the D.C. Court of Appeals stated in Street, “no party to litigation has anything resembling a proprietary right to any witness’s evidence.” 607 A.2d at 1247 (quoting Doe v. Ely Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C. 1983)).
The Court discerns no difference between this case and Lovecchio. Like the plaintiff in that case, Lovelace has been treated by numerous physicians since the incident about which she sues, meaning that the “efficiency gains of ex parte interviews in this case are . . . substantial.” Lovecchio, 319 F. Supp. 3d at 265. Also, there are several physicians who are located in Baltimore and Boston and are thus beyond the Court’s subpoena power. And while Lovelace argues that, unlike the plaintiff in Lovecchio, she has identified three of her subsequent treaters as those she intends to call as witnesses, the Court sees no reason why this should limit the treaters with whom defendant may speak. (See Def.’s Mem. of Law at 6 (“Such an argument ignores the fact that these health care providers could have information about causation or damages important to the defense of the case apart from whatever purpose for which Plaintiff intends to call three of them as witnesses during trial.”).) Also like Lovecchio, while plaintiff claims that ex parte interviews with defendant may lead to intimidation of her healthcare providers or other untoward conduct (see Joint Status Report at 12-13), this “seem[s] little more than speculation.” Lovecchio, 319 F. Supp. 3d at 265.
The Court is aware of other decisions in this district concluding that such reasons are insufficient to grant a defendant ex parte access to a plaintiff’s physicians.1 (See Joint Status Report at 5-6 (collecting cases).) This Court, sitting in a diversity action, is guided by the D.C. Court of Appeals’ decision in Street, which admonished that “no party to litigation has anything resembling a proprietary right to any witness’s evidence,” Street, 607 A.2d at 1247 (internal quotation marks omitted), and therefore defendant may conduct ex parte interviews with plaintiff’s treating physicians in compliance with the requirements set down below.
1 A number of these cases cite to Maryland case law to support their decisions. See, e.g., Bigelow v. Washington Hosp. Ctr., No. 10-cv-1461 (RLW) (D.D.C. Jan. 17, 2012) (citing as support Jeffares v. Kheiri, No. L-07-1923 (BEL) (D. Md. Nov. 19, 2008)).
CONCLUSION
Upon consideration of the memoranda of law submitted by the parties, and for the reasons stated above, it is hereby:
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