Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that the Health Insurance Portability and Accountability Act of 1996 (HIPAA)’s general rule that ex parte communications with a litigant patient’s physician are prohibited did not preempt Missouri law because prior Missouri case law never created a right for attorneys to engage in voluntary and informal ex parte communication with a plaintiff’s physician. Rather, Missouri case law only confirmed that, prior to HIPAA, there was no state or federal law that prohibited such informal communications with a plaintiff’s physician. Furthermore, the court held that HIPAA’s regulation allowing disclosure of a patient’s protected health information in the course of “judicial proceedings” does not apply to an informal meeting for ex parte communications. Therefore, the trial court erred in issuing an order advising a plaintiff’s non-party treating physicians that they may or may not participate in informal discovery using ex parte communications because the ex parte meeting is not considered a “judicial proceeding.”
I. Facts and Holding
Bobbie Jean Proctor and Vincent Proctor filed a medical malpractice complaint in the Circuit Court of Jackson County against Kansas City Heart Group, P.C.; Timothy L. Blackburn, M.D.; and St. Joseph Medical Center.[2] The complaint alleged that Bobbie Jean incurred damages during her surgery in March 2004 as a result of defendants’ medical negligence.[3]
The defendants filed motions with the Circuit Court of Jackson County seeking a formal order to allow “informal ex parte communications with Bobbie Jean’s treating physicians and other health care providers.”[4] After hearing oral arguments, the circuit court granted the motions and issued an order authorizing “non-party medical providers of Bobbie Jean Proctor to engage in informal ex parte communications with attorneys representing defendant medical providers.”[5] However, the order also stated that the plaintiffs’ medical providers were “free to ignore the purported ‘order’ as it relates to ex parte communications with the parties and their attorneys if they had not received authorization from their patient to engage in such ex parte communications.”[6] The scope of this order was not limited to disclosures that would lead to the discovery of admissible evidence.[7] In response to the Circuit Court’s ruling and order, the plaintiffs filed a motion for a writ of prohibition.[8]
The Supreme Court of Missouri, in a unanimous decision, held that, “by issuing a purported formal order that was directed to nonparty medical providers and, essentially, providing an advisory opinion to said non-party medical providers about the trial court’s understanding of the law on informal ex parte communications, the trial court exceeded its authority, and the preliminary writ of prohibition is made permanent.”[9]
II. Legal Background
A. Preemption
The court first dealt with the issue of whether the HIPAA preempts Missouri law on ex parte communications with medical providers.[10] The court noted that, under the United States Constitution’s Supremacy Clause, the federal law “‘shall be the supreme Law of the Land.’”[11] However, where the federal statute that is in question pertains to an area of law that is traditionally controlled by the states, preemption should only be found when it is clearly Congress’ intent to do so.[12]
HIPAA preemption is an issue of first impression for this court.[13] The court first decided whether to apply HIPAA as a whole in the preemption analysis or just a specific provision of HIPAA.[14] In other words, the question was whether the court should interpret HIPAA in its entirety as contrary to and more stringent than the specific state law at issue, or whether it should limit its preemption scope to a specific provision of HIPAA as contrary to and more stringent than a specific provision of state law.[15]
HIPAA’s express preemption language states that “‘a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law.’”[16] Furthermore, the Secretary of the Department of Health and Human Services has determined that, a court must isolate and compare a specific provision of HIPPA with the corresponding state provision in order to determine whether preemption exists; however, it does not matter if HIPPA preempts the isolated provision since the remaining provisions of the state privacy law would still be enforced.[17]
Based on the language of the statute and the Secretary’s statements, the court held that when engaging in a preemption analysis, the first step is to identify a specific HIPAA provision that is in conflict with a provision of Missouri law on ex parte communications between attorneys and physicians.[18] Once these provisions are identified, it must then be determined whether or not Missouri’s provision is more or less stringent than HIPAA’s provision.[19]
B. HIPPA Generally
The court states that in HIPAA, Congress’ intent was to “ensure the privacy of patients’ medical information,” and the Secretary was directed to promulgate rules and regulations in order to carry out Congress’ intent.[20] To this end, the Secretary “has defined protected ‘health information’ as: “[a]ny information, whether oral or recorded in any form or medium, that: “(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and (2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.”[21]
Based on this regulation, the court found that, under HIPAA, physicians are prohibited from disclosing a patient’s protected health information in ex parte communications with a defendant’s attorneys unless an express exception applies.[22]
C. Missouri Law on the Issue of Ex Parte Communications
The court first begins its examination of Missouri law by noting that, under Missouri’s common law, a plaintiff in a personal injury lawsuit could not be forced to sign an authorization consenting to ex parte communications with treating physicians.[23] In State ex rel. Woytus v. Ryan, the court had “refused to compel a patient to sign a medical authorization order consenting to ex parte communications because ‘the [Missouri Rules of Court] do not expressly forbid ex parte discussion, [or] expressly authorize such discussion as a method of discovery.’”[24]
In Brandt v. Pelican, the court addressed “whether voluntary and informal ex parte communications between defense counsel and plaintiff’s treating physician (without plaintiff’s consent) were prohibited during the discovery period of litigation.”[25] The court examined Missouri’s physician-patient testimonial statute and, finding that there was no express prohibition on informal and voluntary ex parte communications with plaintiff’s physician in the statute, held that the defendant should not be sanctioned for engaging in voluntary and informal ex parte communication with the plaintiff’s physician.[26]
In Brandt v. Med. Def. Assocs., the court addressed “whether such voluntary ex parte communications by the plaintiff’s treating physician violated the physician’s common law fiduciary duty of confidentiality.”[27] The court held that once a personal injury lawsuit is filed where the plaintiff’s medical condition is placed at issue, there has been a waiver of the patient/physician privilege.[28] This waiver includes the physician’s duty of confidentiality, which itself includes voluntary ex parte conferences with the plaintiff’s treating physician.[29]
However, the court reiterated that nothing in either of the Brandt opinions establishes any basis to compel the plaintiff or his treating physicians to authorize, or participate in, ex parte communications.[30]
D. Treating Physicians Comply With HIPAA and Missouri Law
Following the Brandt cases, Congress passed HIPAA, which, unlike Missouri statutory law and discovery rules, specifically addressed the issue of voluntary ex parte communications with a litigant patient’s treating physician.[31] The general rule under HIPAA is that ex parte communications with a litigant patient’s physician are prohibited.[32] The question then is “whether or not HIPAA’s prohibition of the oral disclosure of plaintiff’s protected health information by one or more of plaintiff’s treating physicians, absent authorization by plaintiff, preempts Missouri law that fails to prohibit such ex parte disclosures.”[33]
The Supreme Court of Missouri held that while Missouri courts must comply with HIPAA, HIPAA does not preempt Missouri law on this specific issue.[34] The court reasoned that HIPAA did not preempt Missouri law because Missouri case law never affirmatively created a right for attorneys to engage in voluntary and informal ex parte communications with a litigant patient’s physician.[35] Rather, Missouri case law had only stated that at the time there was no state or federal law that prohibited such informal communications.[36]
E. Application of Enumerated Exceptions Prohibitions of Ex Parte Communications
Although HIPAA generally prohibits disclosure of a patient’s protected health information when no disclosure has been authorized, the regulations state that there are exceptions to the general rule.[37] Under 45 C.F.R. § 164.512(e)(1), a “‘covered entity may disclose protected health information in the course of any judicial or administrative proceeding: (i) [i]n response to an order of a court . . . or (ii) [i]n response to a subpoena [or] discovery request.’”[38]
The court held that the trial court erred in applying 45 C.F.R. § 164.512(e)(1) because the regulation’s language does not authorize the disclosure of protected health information during a meeting in which an attorney has ex parte communications with a physician without the patient’s express authorization.[39] In order for the exception to apply, “the covered entity’s disclosure must occur ‘in the course of’ a ‘judicial proceeding,’ and it must be made in response either to a formal process, whether in the form of a court order, discovery request or other lawful process.”[40]
In reaching this decision, the court engaged in a lengthy discussion of the meanings of the terms in 45 C.F.R. § 164.512(e)(1), looking to both the plain meaning of the statute and Missouri law.[41] The court held that the meeting where the ex parte communications occur is not considered to be a judicial proceeding.[42] It is not considered to be a judicial proceeding because the trial court has no general oversight of, or control over, the meeting.[43] Therefore, “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.”[44] Because it did not apply, the trial court lacked authority to issue its order “advising the plaintiff’s non-party treating physicians that they may or may not participate in informal discovery via ex parte communications.”[45]
Finally, the court gave direction to physicians who may wonder how to comply with the outcome of this case.[46] The court stated that “[t]he treating physician in this case can comply with HIPAA by not giving an ex parte interview without an authorization and also comply with Missouri common law by choosing not to grant the ex parte interview.”[47]
III. Comment
The Supreme Court of Missouri’s decision in State ex rel. Bobbie Jean Proctor sheds light on exactly what a physician is required to do, and what a court may order, when defendants seek to engage in informal ex parte communications with a plaintiff’s non-party physicians.[48] As a preliminary matter, although HIPAA does not preempt Missouri law, the court must apply HIPAA while using Missouri law to supplement it.[49] According to the court, a plaintiff’s physician must have authorization from the plaintiff to engage in an ex parte interview with defendants’ attorneys in order to be in compliance with HIPAA’s regulations.[50]
Additionally, under Missouri law, a plaintiff’s physician has the option to decline to be interviewed ex parte by defendants’ attorneys, even if the plaintiff has given authorization for the interview.[51] Finally, in the context of informal ex parte interviews, a court has no authority to order a plaintiff’s physicians to engage in ex parte communication with defendants’ attorneys since communication in that context does not constitute a “judicial proceeding” under Missouri law, and is therefore not allowed by HIPAA.[52]
The holding in this case provides assistance to Missouri physicians who wonder what their obligations are when they have treated a patient who becomes a plaintiff in a personal injury case and the defendants in the action seek to communicate ex parte with them.
-Adam J. Wallach
[1] 320 S.W.3d 145 (Mo. 2010) (en banc).
[2] Id. at 147.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id. at 158.
[10] Id. at 148.
[11] Id. (quoting U.S. Const. art. VI, cl. 2).
[12] Id.
[13] Id.
[14] Id. at 149.
[15] Id.
[16] Id. at 148 (quoting 42 U.S.C. § 1320d-7(2) (1996)).
[17] Id. at 149.
[18] Id. at 150.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 151. (quoting State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 392 (Mo. 1989) (en banc)).
[25] Id. (citing Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. 1993) (en banc)).
[26] Id.
[27] Id. at 152.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id. at 153.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id. at 155.
[39] Id. (quoting 45 C.F.R. § 164.512(e)(1) (2010)).
[40] Id.
[41] Id. at 155-56.
[42] Id. at 157 (citing 45 C.F.R. § 164.512(e)(1) (2010)).
[43] Id.
[44] Id.
[45] Id.
[46] Id. at 158.
[47] Id.
[48] Id.
[49] Id. at 153.
[50] Id. at 158.
[51] Id.
[52] Id.
