Callahan v. Bledsoe, et al.

Filing 66

MEMORANDUM AND ORDER granting 38 Motion for Order for Medical Records and Ex Parte Interviews of Treating Physicians. Signed by Magistrate Judge Gerald L. Rushfelt on 2/14/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JENOISE M. CALLAHAN,
Plaintiff,
v.

Case No. 16-2310-JAR-GLR

SCOTT BLEDSOE, M.D., and
WESLEY MEDICAL CENTER, LLC,
Defendants.

MEMORANDUM AND ORDER
This matter is before the Court upon Defendant Wesley Medical Center, LLC’s
(“WMC”) Motion for Order for Medical Records and Ex Parte Interviews of Treating Physicians
(ECF 38). For the reasons below, the Court grants Defendant’s motion.
Plaintiff Jenoise M. Callahan brought this medical malpractice action alleging generally
that Defendants failed to properly diagnose and treat Plaintiff’s hypertension, intracranial
pressure, and increased cerebral spinal fluid pressure causing Plaintiff permanent loss of
vision/blindness. The parties are now conducting discovery. To that end, WMC filed the instant
motion seeking an order from this Court that would allow (1) WMC to inspect and obtain a copy
of all of Plaintiff’s medical records, including protected health information pursuant to state and
federal law; and (2) defense counsel to conduct ex parte interviews of Plaintiff’s treating
physicians. Plaintiff opposes the motion, recognizing that this Court has granted such motions
before but “preserv[ing] this issue for appeal and to discuss a movement in Kansas state courts
denying similar motions.”1

1

ECF 45 at 1.

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) prohibits
unauthorized disclosures or misuse of protected health information by covered entities. HIPAA,
however, does not prohibit all disclosures; rather, it imposes procedures on health care providers
concerning the disclosure of medical information.2 HIPAA regulations set forth in 45 C.F.R. §
164.512(e) provide for the disclosure of protected health information in judicial proceedings
under the following circumstances:
(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; 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.
The regulations plainly provide two separate and alternative methods for obtaining protected
health information without violating HIPPA: (1) by court order under § 164.512(e)(1)(i)
2

Harris v. Whittington, No. 06–1179–WEB, 2007 WL 164031, at *2 (D. Kan. Jan. 19, 2007).

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authorizing such disclosure or, alternatively, (2) by a formal discovery request, such as a
subpoena, when accompanied by certain required assurances and notices. Although HIPAA and
its regulations do not expressly authorize ex parte interviews of health care providers, this
District has a well-established practice of allowing informal ex parte interviews of Plaintiff’s
treating physicians who are merely fact witnesses as long as a defendant complies with HIPAA
and its related regulations.3
As an initial matter, the parties agree that the physician-patient testimonial privilege is
inapplicable because Plaintiff’s condition is an issue in this lawsuit.4 Plaintiff argues, however,
that the physician-patient testimonial privilege is distinct from federally imposed laws creating a
duty of confidentiality for physicians. Plaintiff provides a summary of what appears to be a
recent trend among Kansas state court judges in deciding this issue. In short, those judges
contend that the order requested by WMC is “nothing more than an advisory opinion to a
nonparty to do some act outside of this judicial proceeding that the Court cannot enforce,
monitor, sanction or effectively review” and thus does not comply with 45 C.F.R. 164.512(e).
Respectfully, this Court disagrees. Medical providers typically provide stringent procedures in
complying with HIPPA, as they fear violating it and, by extension, their patients’ privacy. What
WMC and similarly-situated defendants are seeking is an order from a court that allays the
medical provider’s fears that talking with such a party may violate their obligations under
HIPPA—nothing more. It is therefore not an advisory opinion; rather, it is an order stating that a
3

Paliwoda v. Showman, No. 12-2740-KGS, 2013 WL 3756591, at *1 (D. Kan. July 15, 2013); Madrid v.
Williams, No. 12–1033–CM, 2012 WL 2339829 (D. Kan. June 19, 2012) (J. Humphreys); Lowen v. Via Christie
Hosps. Wichita, Inc., No. 10–1201–RDR, 2010 WL 4739431 (D. Kan. Nov. 16, 2010) (J. Sebelius); Spraggins v.
Sumner Reg’l Med. Ctr., No. 10–2276–WEB/KGG, 2010 WL 4568715 (D. Kan. Nov. 3, 2010) (J. Gale); Brigham v.
Colyer, No. 09–2210–JWL–DJW, 2010 WL 2131967 (D. Kan. May 27, 2010) (J. Waxse); Pratt v. Petelin, No. 09–
2252–CM–GLR, 2010 WL 446474 (D. Kan. Feb. 4, 2010) (J. Rushfelt); Sample v. Zancanelli Mgmt. Corp., No. 07–
2021–JPO, 2008 WL 508726 (D. Kan. Feb. 21, 2008) (J. O’Hara); Bohannon v. Baker, No. 06–1033–MLB, 2006
WL 2927521 (D. Kan. Oct. 12, 2006) (J. Bostwick).
4

K.S.A. § 60-427(d).

3

court of law has determined that medical records are relevant to a case involving the medical
provider’s patient (current or former) and that the treating physicians may discuss and/or release
that patient’s medical records to the party presenting such an order. In other words, the order is a
procedural safeguard in protecting patients’ privacy.5 This position is bolstered by the numerous
opinions of this District, several Kansas state courts’ local rules, and a letter from the United
States Department of Health & Human Services, which states:
45 C.F.R. § 164.512(e) . . . provides an example of informal
process. The informal process, in regard to disclosures and judicial
proceedings pursuant to 76 Okla. Stat. §19(B) involves defendants
in a medical malpractice case communicating ex parte with
physicians “just as they could any other fact witness.”6
For these reasons, this Court sees no reason to depart from this District’s well-established
practice of allowing informal ex parte interviews of Plaintiff’s treating physicians who are
merely fact witnesses, provided that defendants comply with HIPAA and its related regulations.
IT IS THEREFORE ORDERED BY THE COURT that Defendant Wesley Medical
Center, LLC’s Motion for Order for Medical Records and Ex Parte Interviews of Treating
Physicians (ECF 38) is granted. In accordance with this decision, the Court will enter an
appropriate order for disclosure of medical information.
IT IS SO ORDERED.
Dated February 14, 2017, at Kansas City, Kansas.
S/ Gerald L. Rushfelt
Gerald L. Rushfelt
U.S. Magistrate Judge

5

If anything, the order sought is more akin to a warrant in a criminal case than an advisory opinion.

6

ECF 59-1 at 5, n. 5. The statute discussed in that letter is similar to K.S.A. § 60-427.

4