Escalante v. LifePoint Hospital Inc. et al

Filing 46

MEMORANDUM AND ORDER granting 39 Motion for Order for Medical Records. Signed by Magistrate Judge Kenneth G. Gale on 6/9/17. (df)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
RAQUEL ESCALANTE, et al.,

)
)
Plaintiff,
)
)
vs.
)
)
LIFEPOINT HOSPITAL dba WESTERN )
PLAINS MEDICAL COMPLEX, et al.
)
)
Defendants.
)
___________________________________ )

Case No. 17-2035-JWL-KGG

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR ORDER FOR MEDICAL RECORDS
Defendant Lifepoint Hospital dba Western Plains Medical Complex (herein
“Defendant” or “Western Plains”) has moved for the Court to enter orders
“authorizing the inspection and reproduction of plaintiffs’ medical records and
permitting ex parte interviews with plaintiffs’ treating health care providers.”
(Doc. 39.) For the reasons set forth herein, the motion is GRANTED.
This is a medical malpractice case in which it is undisputed that the medical
conditions of Plaintiff and her minor daughter (on behalf of whom she is suing) are
at issue. Plaintiff objects to the motion, however, as to Defendant’s requested
authorization to speak to the health care providers outside the presence of
Plaintiff’s counsel. (See generally Doc. 41.)
1

Defendant’s request implicates the Health Insurance Portability and
Accountability Act of 1996 (“the Act” or “HIPAA”). The Act prohibits the
unauthorized disclosure or misuse of protected health information by entities its
covers. “HIPAA, however, does not prohibit all disclosures; rather, it imposes
procedures on health care providers concerning the disclosure of medical
information.” Callahan v. Bledsoe, No. 16-2310-JAR-GLR, 2017 WL 590254, at
*1 (D. Kan. Feb. 14, 2017) (citing Harris v. Whittington, No. 06-1179-WEB, 2007
WL 164031, at *2 (D. Kan. Jan. 19, 2007)).
The Act specifically provides for the disclosure of protected health
information in judicial proceedings in following instances:
(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
2

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.
45 C.F.R. § 164.512(e). Thus, the Act clearly provides two separate methods for
obtaining protected health information without risking the violation of its terms:
(1) by court order authorizing such disclosure or (2) via formal discovery request,
such as a subpoena, “when accompanied by certain required assurances and
notices.” Callahan, 2017 WL 590254, at 2.
The Court acknowledges that HIPAA does not expressly provide for ex
parte interviews of health care providers. It does not, however, expressly prohibit
the practice, either. Further, issuing orders which allow for ex parte interviews of
health care providers is a well-established practice in this district. Id. (citing
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.
3

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, the undersigned); 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))
Plaintiff recognizes that Courts in this District routinely grant these motions.
(Doc. 41, at 1.) Plaintiff, however, “presents . . . arguments and authorities to
preserve this issue for appeal and to discuss a movement in Kansas state courts
denying similar motions . . . .” (Id.) While the Court acknowledges Plaintiff’s
arguments and cited state court authorities, the overwhelming balance of authority
in this District allows for the type of order and interviews Defendant requests. As
such, Defendant’s motion is GRANTED.

IT IS THEREFORE ORDERED that Defendant’s Motion for Order for
Medical Records (Doc. 39) is GRANTED.
IT IS SO ORDERED.

4

Dated at Wichita, Kansas, on this 9th day of June, 2017.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

5