Madrid v. Williams

Filing 24

MEMORANDUM AND ORDER denying 11 Plaintiff's Motion for Protective Order; granting 17 Defendant's Motion for the disclosure of protected healthcare information. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 6/19/2012. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARIA MADRID,
Plaintiff,
v.
BEN D. WILLIAMS, M.D.,
Defendant.

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Case No. 12-1033-CM

MEMORANDUM AND ORDER

This matter is before the court on plaintiff’s motion for a protective order (Doc. 11)
and defendant’s related motion for the disclosure of medical information (Doc. 17). The two
motions raise the issue of defendant’s ex parte interview of plaintiff’s healthcare providers.
For the reasons set forth below, plaintiff’s motion shall be DENIED and defendant’s motion
shall be GRANTED.1

Background
This is a medical malpractice case. Plaintiff alleges that Dr. Ben Williams was
negligent in providing medical care and treatment to N.M.M. and Ms. Madrid during
N.M.M.’s birth in March 2004. Plaintiff contends that Dr. Williams’ negligence caused or

1

This memorandum and opinion memorializes the court’s oral ruling during a status
conference on June 5, 2012.

contributed to N.M.M.’s severe and permanent personal injuries.

Plaintiff’s Motion for a Protective Order (Doc. 11)
and
Defendant’s Motion for Disclosure of Protected Health Information (Doc.17)
Plaintiff concedes that information relating to N.M.M.’s health and, to an extent, Ms.
Madrid’s health are relevant to the issues in this case and subject to discovery. However,
because of the personal nature of the information, plaintiff seeks a protective order regulating
the release of health information. Defendant moves for an order authorizing healthcare
providers who provided care and treatment to Ms. Madrid and N.M.M. to disclose healthcare
information to defendant pursuant to the Health Insurance Portability and Accountability Act
(“HIPAA”) and 45 C.F.R. § 164.512(e)(1)(i).

The parties have reached agreement

concerning the protective order and disclosure of medical information with one
exception—plaintiff seeks a protective order prohibiting defense counsel from conducting
ex parte interviews of the treating healthcare providers and defendant seeks authorization for
the ex parte interviews.
Courts in this district have a well-established practice 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. Harris v. Whittington, 2007 WL
1640301 (D. Kan. January 19, 2007)(J. Humphreys); Sample v. Zancanelli Management
Corp., 2008 WL 508726 (D. Kan. February 21, 2008)(J. O’Hara); Pratt v. Petelin, 2010 WL
446474 (D. Kan. February 4, 2010)(J. Rushfelt); Brigham v. Colyer, 2010 WL 2131967 (D.

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Kan. May 27, 2010)(J. Waxse); Spraggins v. Sumner Regional Medical Center, 2010 WL
4568715 (D. Kan. November 3, 2010)(J. Gale). Consistent with HIPAA and 45 C.F.R. §
164.512(e), defendant moves for disclosure of healthcare records and permission to conduct
ex parte interviews of the treating healthcare providers.
Conceding the well-established case law in this district concerning HIPAA and ex
parte interviews, plaintiff argues that recent changes in Kansas statutes warrant a change in
the court’s practices. Specifically, plaintiff argues that the passage of the Kansas Health
Information Technology and Exchange Act (“KHIA”), K.S.A. 65-6821 et seq., reflects a
material change in the requirements concerning the disclosure of healthcare information by
Kansas healthcare providers.2 The court is not persuaded that the recent enactment has a
material impact on this district’s practices because KHIA was enacted “to harmonize state
law with the HIPAA privacy rule with respect to . . . proper safeguarding of protected health
information.” K.S.A. § 65-6823(a). Consistent with the goal of harmonizing state law with
HIPAA, K.S.A. § 65-6825 provides for the disclosure and use of protected health information
as permitted under “45 C.F.R. 164.502, 164.506, 164.508, 165.510 and 164.512.” As noted
above, courts in this district have consistently allowed ex parte interviews as long as the
defendant complies with 45 C.F.R. § 164.512(e); therefore, the enactment of KHIA does not
present a material change in the court’s well-established practice. Because plaintiff’s
argument is not persuasive, her request for a protective order prohibiting ex parte interviews
shall be denied and defendant’s motion for an order allowing disclosure of such information
2

KHIA became effective July 1, 2011.
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is granted.3

IT IS THEREFORE ORDERED that plaintiff’s motion for a protective order
prohibiting ex parte contact and interviews (Doc. 11) is DENIED and defendant’s motion
for the disclosure of protected healthcare information (Doc. 17) is GRANTED.4
IT IS FURTHER ORDERED that counsel shall disclose any “standard of care” or
causation opinion expressed by a treating healthcare provider during any ex parte interview
within ten days of learning of such information. This disclosure requirement applies to both
parties.
Dated at Wichita, Kansas this 19th day of June 2012.

S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge

3

Plaintiff also requests permission to send the healthcare providers a separate letter
expressing her desire to be present should the provider agree to talk to defense counsel.
The court is not persuaded that authorization of such a letter is appropriate because it is an
informal attempt to persuade a fact witness to avoid talking to opposing counsel.
Moreover, the proposed letter adds further complexity to a process that is intended to
allow counsel a speedy and efficient means of gathering information.
4

Orders for inspection and disclosure of healthcare information consistent with the
court’s ruling were filed on June 5, 2012. (Doc. 22 & 23).
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