Morgan v. Wesley Medical Center, LLC et al

Filing 237

MEMORANDUM AND ORDER granting 193 Motion for Order. Signed by Magistrate Judge Kenneth G. Gale on 12/20/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

D.M., a minor, by and through
his next friend and natural guardian,
KELLI MORGAN,

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Plaintiff,
vs.
WESLEY MEDICAL CENTER LLC,
et al.,
Defendants.

Case No. 18-2158-KHV-KGG

MEMORANDUM & ORDER ON MOTION FOR ORDER
FOR RELEASE OF PROTECTED HEALTH INFORMATION
Before the Court is the “Joint Motion for Order for Release of Protected
Health Information and Allowing Ex Parte Interviews with Treating Physicians
and Other Health Care Providers” filed by Defendants. (Doc. 193.) After review
of the parties’ submissions, the Court GRANTS Defendant’s motion.
BACKGROUND
A.

Medical Information and Care.

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Plaintiff, through his natural guardian and next friend, filed his federal court
Complaint on April 9, 2018, alleging medical malpractice against Defendants
resulting from the medical care he received on March 5 and 6, 2017. Plaintiff
alleges that on March 6, 2017, he “suffered a catastrophic and medicallypreventable stroke that left him with right-side paralysis, neurological damage and
other debilitating physical injuries that permanently changed his and his parents’
lives.” (Doc. 1, at 5.) The facts of this case are more thoroughly summarized in
this Court’s Order on Defendant Chambers-Daney’s “Motion to Strike Immaterial,
Impertinent and Scandalous Matters from Plaintiff’s Complaint” and Defendant
Grover’s “Motion to Strike.” (Doc. 116, at 3-6.) That summary is incorporated
herein by reference.
Currently before the Court is the “Joint Motion for Order for Release of
Protected Health Information and Allowing Ex Parte Interviews with Treating
Physicians and Other Health Care Providers” filed by all Defendants. (Doc. 193.)
Plaintiff argues that the Order, as proposed, is improper because certain treating
physicians are located in Missouri (where ex parte communications by defense
counsel with treating physicians are prohibited), several of D.M.’s treating
physicians will also be identified as retained experts, and certain language
proposed by Defendants is prohibited in this District. (Doc. 212.)
ANALYSIS
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A.

The Health Insurance Portability and Accountability Act of 1996.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”

or “the Act”) prohibits covered entities from engaging in the unauthorized
disclosure or misuse of protected health information. Harris v. Whittington, No.
06–1179–WEB, 2007 WL 164031, at *2 (D.Kan. Jan.19, 2007). The Act does not,
however, prohibit all disclosures but instead imposes procedures on health care
providers as to the disclosure of medical information while still protecting the
privacy of the patient. Spraggins v. Sumner Reg. Medical Ctr., 2010 WL
4568715, at *2 (D. Kan. Nov. 3, 2010). HIPAA regulations 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
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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). This regulation essentially permits the provider to disclose
information under two optional procedures without violating HIPPA: (1) by court
order under section 164.512(e)(1)(i) authorizing such disclosure or, alternatively,
(2) by a formal discovery request, such as a subpoena, accompanied by required
notices and assurances.
In this case, Defendants seek to proceed under section 164.512(e)(1)(i),
allowing for the release of protected health information upon court order. The
overriding purpose of the Federal Rules of Civil Procedure is to provide for the
“just, speedy and inexpensive” resolution of case. Fed.R.Civ.P. 1. A direct order
may help achieve this goal by shortening the discovery process and providing
clarity to providers.
The Court acknowledges that HIPAA and its regulations do not expressly
authorize ex parte interviews of health care providers. That stated, there is a well4 

established practice among judges of this District “of allowing informal ex parte
interviews of plaintiff’s treating physicians who are merely fact witnesses as long
as defendant complies with HIPAA and its related regulations.” Paliwoda v.
Showman, No. 12-2740-KGS, 2013 WL 3756591, at *2 (D. Kan. July 15, 2013)
(citations omitted).
Such ex parte interviews are allowed by courts because “HIPAA presents
certain considerations and constraints for covered entities cautious not to run afoul
of the Act.” Lowen v. Via Christie Hosps. Wichita, Inc., No. 10-1201-RDR, 2010
WL 4739431, at *2 (D. Kan. Nov. 16, 2010). “An order authorizing ex parte
interviews of health care providers creates an avenue for informal discovery that
might not otherwise be available.” Paliwoda v. Showman, No. 12-2740-KGS,
2013 WL 3756591, at *2. Opinions from this District
reason that to allow ex parte communications with fact
witnesses, such as treating physicians, creates a just
result by allowing both parties equal, unfettered access to
fact witnesses. To prohibit ex parte communications
would allow one party unrestricted access to fact
witnesses, while requiring the other party to use formal
discovery that could be expensive, timely, and
unnecessary. Witnesses, of course, may refuse to
communicate ex parte and thus require the parties to
resort to formal discovery procedures. Less expensive
informal discovery, nevertheless, should be encouraged.
For these reasons a court may allow defendants access to
the medical records and treating physicians of a plaintiff
who has placed his or her physical or mental condition in
issue.
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Pratt v. Petelin, No. 09-2252-CM-GLR, 2010 WL 446474, at *7 (D. Kan. Feb. 4,
2010). Within this context, the Court will address Plaintiff’s objections to the
proposed Order.
B.

Application of Missouri Law.
Plaintiff argues that
[m]any of Plaintiff’s subsequent treating providers
treated D.M. in Missouri, not Kansas. Specifically,
D.M.’s subsequent Missouri treaters are from Children’s
Mercy Hospital in Kansas City, Missouri. Missouri
prohibits ex parte communication by defense counsel
with a plaintiff’s subsequent treaters. State ex rel.
Proctor v. Messina, 320 S.W.3d 145 (2010). Thus, this
Court cannot authorize D.M.’s Children’s Mercy
providers in Missouri to engage in ex parte
communications.

(Doc. 212, at 1.)
Defendants reply that the Missouri Supreme Court’s stance is not applicable
in this District Court of Kansas case as to health care providers practicing at
Children’s Mercy in Kansas City, Missouri. (Doc. 233, at 2.) Defendants indicate
that Courts in this District have specifically rejected this analysis from the
Missouri Supreme Court. (Id. (citing Pratt, 2010 446474, at *8) (holding that the
Messina case “does not create controlling precedent for this Court” and declining
“to adopt the holding that ex parte interviews are not considered ‘in the course of’
a judicial proceeding.”).) Defendants also point out that

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Plaintiff has not cited any case in this district holding that
ex parte contact is precluded if the treating physician
works in Missouri. The legal issues surrounding ex parte
communications with health care providers implicate the
federal and local rules, the Kansas privilege statute, and
HIPAA. None of those turns on where a witness works.
(Doc. 233, at 2.)
As discussed above, HIPAA permits a health care provider to disclose
otherwise protected health information “in the course of any judicial or
administrative proceeding” if that disclosure is in response to (i) an order of a
court, or (ii) in response to a subpoena, discovery request, or other lawful process,
that is not accompanied by an order of a court. 45 C.F.R. § 164.512(e)(1).
Therefore, the express language of the Act allows such disclosure by the covered
entity that occurs “in the course of” a “judicial proceeding.” The Act does not,
however, define the terms “in the course of” or “judicial proceeding.”
The Assistant Secretary for Planning and Evaluation of the Department of
Health and Human Services has provided the following guidance:
In § 164.512(e) of the final rule, we permit covered
entities to disclose protected health information in a
judicial or administrative proceeding if the request for
such protected health information is made through or
pursuant to an order from a court or administrative
tribunal or in response to a subpoena or discovery request
from, or other lawful process by a party to the
proceeding.

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Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg.
82462, 82529 (Dec. 28, 2000). As stated in Messina, the case cited by Plaintiff,
“such disclosure must be under the supervisory authority of the court either
through discovery or through other formal court procedures.”
The law in this District interpreting the phrases “in the course of” and
“judicial proceeding” clearly differs from Missouri law. Pursuant to Missouri law,
the meeting at which ex parte communications occur is
not a judicial proceeding because the trial court has no
general oversight of the meeting or any control over it.
Thus, 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, and consequently,
a trial court has no authority to issue a purported HIPAA
order advising the plaintiff’s non-party treating
physicians that they may or may not participate in
informal discovery via ex parte communications.
Messina, 320 S.W.3d at 157. The law of this District, however, recognizes the
“well-established practice” is that such communications are permitted – although
not expressly authorized by – HIPAA. Callahan v. Bledsoe, 16-2310-JAR-GLR,
2017 WL 590254, at *1 (D. Kan. Feb. 14, 2017); Lowen, 2010 LW 4739431 (D.
Kan. Nov. 16, 2010).
It is undisputed that, under the law of this District as well as the law in
Missouri, once a plaintiff puts the matter of his or her physical condition in issue
under the pleadings, “they waive the physician-patient privilege.” Giegerich v.
National Beef Pkg. Co., LLC, No. 13-2392-JAR, 2014 WL 103455, at *3 (D. Kan.
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Jan. 9, 2014); State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997).
The Court acknowledges that, in an effort to lessen the likelihood of abuse of the
physician-patient privilege, courts in Missouri have adopted the practice of not
issuing orders that allow voluntary ex parte communications between defense
counsel and treating health care providers. This is merely a procedural safeguard,
however, not an aspect of the underlying substantive physician-patient privilege.
As such, the Court sees no reason to abandon the well-established practice of
issuing an order allowing ex parte communications with treating physicians in this
District of Kansas case – even if those health care providers reside, practice, and/or
provided health care to Plaintiff in Missouri. Plaintiff’s objection is overruled.
C.

Treating Physicians as Fact vs. Expert Witnesses.
Plaintiff invokes the Federal Rules of Civil Procedure to advance a novel

approach that would prohibit Defendants from engaging in ex parte
communication with any treating health care providers at Children’s Mercy
Hospital in Kansas City, Missouri and Children’s Hospital Colorado. Plaintiff
argues that because some of these treating health care providers may be identified
as retained experts or used as non-testifying consulting experts, Defendants should
not be allowed to communicate, ex parte, with any of them. Plaintiff argues that
[u]nder Fed.R.Civ.P. 26(b)(4), a party may only verbally
communicate with an opposing parties’ testifying expert
by deposition. A retained expert’s draft reports and
disclosures are protected by work product. Fed.R.Civ.P.
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26(b)(4). Communications between a party’s attorney
and their testifying experts are privileged work product
unless the communications relate to compensation,
identify facts or data the expert considered or the attorney
provided, or identify assumptions. Fed.R.Civ.P.
26(b)(4)(C). For consulting experts employed for trial
preparation, a party may not discover facts known or
opinions held at all. Fed.R.Civ.P. 26(b)(4)(D). Pursuant
to this Court’s Scheduling Order, Plaintiff’s deadline to
disclose experts is June 28, 2019.
(Doc. 212, at 2.)
Plaintiff indicates that “[s]everal of D.M.’s subsequent treaters at Children’s
Mercy Hospital in Kansas City, Missouri and Children’s Hospital Colorado” – who
Plaintiff refuses to identify – are Plaintiff’s “retained experts.” (Doc. 212, at 2.)
Plaintiff argues that the Court should not authorize ex parte communication with
any of these health care providers because some of them will be ultimately
designated as retained as experts. (Id.) According to Plaintiff, allowing
Defendants “to engage in ex parte communications with those providers about
their expert opinions, work product, drafts, or privileged correspondence with
Plaintiff’s counsel” would violate the Federal Rules of Civil Procedure, “which
prohibit Defendants from discovering facts known and opinions held by Plaintiff’s
nontestifying experts, and make deposition the only means by which Defendants
may verbally communicate with Plaintiff’s testifying experts after disclosure
pursuant to the Scheduling Order.” (Id.)

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Plaintiff contends that such communication “risks improper disclosure of
work product and privileged information” because the retained expert doctors are
not trained in identifying where the lines are drawn between privileged
information, work product and disclosable facts.” (Id., at 2-3.) According to
Plaintiff, “[t]he risk of inadvertent and improper disclosure of confidential, work
product, and privileged information is high and the prejudice to Plaintiff is
permanent.” (Id., at 3.)
Plaintiff also argues he should not be required to “prematurely disclose the
names of these experts . . . prior to the Scheduling Order deadline for purposes of
an order authorizing Defendants to engage in ex parte communications with
Plaintiff’s experts.” (Id.) Plaintiff continues that this would give “Defendants an
unwarranted increase in time to designate counter-experts because Defendants’
expert deadline is not until November 13, 2019.” (Id.)
Defendants characterize Plaintiff’s position as follows:
by simply putting some treaters on retainer, [Plaintiff
attempts to] effectively cut off defendants’ ability to have
ex parte contact with any of the treating physicians at
Children’s Mercy Hospital in Kansas City and Children’s
Hospital Colorado. . . . Plaintiff then suggests that he
may decide not to call those witnesses as experts at trial –
and that if he chooses to treat them as ‘consulting
experts,’ then defendants cannot even depose them about
facts or opinions.

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(Doc. 233, at 3.) Defendants correctly point out that Plaintiffs have cited no legal
authority for this position. Defendants continue that “accepting plaintiff’s
argument would create an enormous loophole that nearly every medical
malpractice plaintiff could unfairly exploit to obstruct defendants’ access to
witnesses and factual evidence.” (Id.)
Defendants also argue that Plaintiff misinterprets Rule 26.
To the extent treating physicians learn factual
information through their care and treatment of a patient
(and form opinions incidental to that care and treatment),
they are not ‘retained or specially employed to provide
expert testimony in the case,’ see Rule 26(A)(2)(b), so
the work product protection under Rule 26(b)(4)(C) does
not apply. As the Advisory Committee’s note to the
1970 amendment to Rule 26 states, Rule 26(b)(4) ‘does
not address itself to the expert whose information was not
acquired in preparation for trial but rather because he was
an actor or viewer with respect to transactions or
occurrences that are part of the subject matter of the
lawsuit. Such an expert should be treated as an ordinary
witness.’ Id. Generally, therefore, ‘a physician who
testifies on information and opinions developed and
drawn during the treatment of the party as a patient is
considered to be an ordinary fact witness rather than an
expert.’
(Id., at 4 (citing Foster v. Lawrence Memorial Hosp., No. 91-1151-SAC, 1993
WL 156131, at *1 (D. Kan. April 5, 1993) (citations omitted).)
The Court agrees with Defendants that Plaintiff’s approach is insupportable.
A “central” point in American litigation is that “the law has a right to every
person’s evidence whether the person is an ‘expert’ or not.” 8A Wright, Miller &
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Marcus, Federal Practice & Procedure: Expert Witnesses 3d § 2033 (2018).
Although Plaintiff’s attempted tactic is clever, it clearly contravenes this tenant and
the Federal Rules.
Plaintiff also requests that Plaintiff’s counsel be permitted to attend defense
counsel’s interviews with treating physicians from Children’s Mercy Hospital and
Children’s Hospital Colorado. Without citing any legal authority for such a
requirement, Plaintiff argues that “[a]ttendance provides a safeguard against
disclosure of privileged information, work product, and premature discovery of
facts known and opinions held by Plaintiff’s retained experts.” (Doc. 212, at 3.)
The Court overrules this request.
As an analytical starting point, it is helpful to keep in
mind that the Federal Rules of Civil Procedure are to be
construed ‘to secure the just, speedy, and inexpensive
determination of every action. Informal discovery is both
expedient and less expensive than formal discovery, and
therefore should be encouraged, not discouraged. ‘[B]oth
parties should have unfettered access to fact witnesses.’
Fact witnesses, of course, may confer (or refuse to
confer) with any party. … Although the court
appreciates from strategic and tactical perspectives why
skilled plaintiffs’ lawyers would prefer to have exclusive
informal access to treating physicians …, there is no
persuasive legal support for that approach.
Sample v. Zancanelli Mgmt. Corp., No. 07-2021-JPO, 2008 WL 508726, at *1 (D.
Kan. Feb. 21, 2008); see also Pratt, 2010 WL 446474, at *7. The attendance of
Plaintiff’s counsel at these meetings would result in Defendants’ access being
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anything but “unfettered.” Further, the process would become more expensive and
less expedient, in contravention of the purpose of informal discovery. Although
whether to participate in an ex parte interview remains the prerogative of the
witness, who may also attach conditions to the voluntary interview, the attendance
of Plaintiff’s counsel is not required.
D.

Potentially Ambiguous Language in Order.
Plaintiff next argues that the proposed Order should not be entered as drafted

because of the following language: “Unless specifically excluded by this Order, all
medical records and protected health information in your possession regarding the
person noted above shall be produced.” (Doc. 193-1, at 2.) Plaintiff contends that
such language has been “prohibited” by courts in this District. (Doc. 212, at 4
(citing Warner v. Sherry Floyd, P.A., No. 16-4143-SAC, 2017 WL 2901188, at *2
(D. Kan. Apr. 19, 2017); Williamson v. Joslin, No. 15-CV-2657-JWL-TJJ, 2015
WL 5125421, at *3 (D. Kan. Sept. 1, 2015); Paliwoda v. Showman, No. 12-2740KGS, 2013 WL 3756591, at *2 (D. Kan. July 15, 2013).) According to Plaintiff,
[a]n order may authorize, but not command ex parte
communications. By stating all health information shall
be produced, the proposed Order attempts to compel
D.M.’s subsequent treaters to communicate D.M.’s
health information ex parte. At best, it creates ambiguity
as to whether the Order simply authorizes ex parte
communications, as stated in various parts of the Order,
or requires them as stated on page 2. There is no
legitimate reason for that ambiguity. The offending
sentence should be struck from Defendants’ proposed
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order or modified to clearly and unambiguously reflect
that the order simply authorizes rather than mandates
disclosure of protected health information.
(Doc. 212, at 4.)  
Defendant responds that, taken in the proper context, this language is not
ambiguous as does not command ex parte communication.

The first part of the order deals with medical records and
other information in the health care provider’s care or
custody, gives examples of documents subject to the
order, and orders providers to make them ‘available for
examination and reproduction.’ In the context of the
order, then, the phrase ‘all medical records and protected
health information’ following the bulleted list is not
ambiguous. It means documentary and other information
that can be ‘examined and reproduced’ – not interviews
or conversations.
The order then transitions to its second topic,
which is a separate paragraph discussing ex parte
communication with counsel. The transition is signaled
by the opening phrase: ‘You are further notified that …’
That paragraph of defendants’ proposed order includes a
clear statement that ex parte communication is permitted,
‘provided the health care provider consent to the
interview.’
(Doc. 233, at 6.) The Court agrees with Defendants that, taken in context, this
language is not ambiguous and does not compel ex parte communication.
Plaintiff’s objection is overruled.
E.

Disclosure of Health Care Providers to be Contacted.
Plaintiff also argues that “this District requires an ex parte order to

specifically identify Plaintiff’s treating physicians to whom the order is
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directed….” (Doc. 212, at 4 (citing Brigham v. Colyer, No. 09-2210-JWL-DJ,
2010 WL 2131967, at *5 (D. Kan. May 27, 2010).) Defendant correctly points out
that Brigham is distinguishable because the defendants in that case agreed to
specifically identifying such treating physicians. The Court overrules Plaintiff’s
request that the health care providers to whom the Order is directed be identified.
F.

Termination of the Order.
Plaintiff objects that the Order should indicate that it terminates at the close

of discovery rather than at the conclusion of litigation. (Doc. 212, at 4.) Plaintiff
offers no legal authority or argument for this position. Defendants indicate that
D.M. “is a child with serious health issues, and his condition is susceptible to
change at any time – including after the discovery deadline – thus necessitating
access to D.M.’s medical records, health information, and speaking with
consenting health care providers. (Doc. 233, at 8.) The Court agrees with
Defendants. Plaintiff’s objection is overruled. The Order shall terminate at the
close of litigation.

IT IS THEREFORE ORDERED that the “Joint Motion for Order for
Release of Protected Health Information and Allowing Ex Parte Interviews with
Treating Physicians and Other Health Care Providers” filed by Defendants (Doc.
193) is GRANTED.
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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 20th day of December, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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