Alabama Supreme Court Opens the Gate for Defense Counsel to Have Ex Parte Communications with Plaintiffs’ Treating Physicians
Prepared by Shauncey Ridgeway
July 7, 2020
On June 30, 2020, the Alabama Supreme Court concluded that notice and an opportunity to attend for counsel opposite are not required for ex parte interviews of treating physicians in an extensive opinion issued in Ex parte Curt Freudenberger, M.D., and Sportsmed Orthopedic Surgery & Spine Center, P.C., No. 1190159 (Ala. June 30, 2020).
Facts & Procedural History
Rhonda and Charlie Brewer sued Dr. Curt Freudenberger (“Freudenberger”) and Sportsmed Orthopedic Surgery & Spine Center, P.C. (“Sportsmed”) for medical malpractice based on injuries allegedly sustained during the course of a surgery performed by Freudenberger. Charlie asserted an additional claim of loss of consortium. Early in the litigation, Freudenberger and Sportsmed sought entry of a pre-discovery qualified protective order pursuant to HIPAA. Freudenberger and Sportsmed’s proposed protective order contained, among other things, the following qualifications:
- It allowed the parties’ attorneys to request ex parte interviews with Rhonda’s treating physicians for her alleged injuries, who could either grant or deny such request;
- It prohibited the parties from using or disclosing protected health information for any purpose other than the subject litigation; and
- It required the return or destruction of that information at the end of the litigation.
The Brewers objected to entry of the proposed qualified protective order, saying that ex parte interviews of Rhonda’s treating physicians would violate both HIPAA and the Alabama Rules of Civil Procedure. The trial court ultimately entered a qualified protective order authorizing disclosure of Rhonda’s protected health information on the condition that:
- No ex parte interviews [would] be conducted by [defense counsel] with [Rhonda’s] prescribing and treating physicians unless and until [defense counsel] provides [Rhonda’s counsel] with at least ten (10) days written notice of the time and place of the interview and the opportunity to attend.
Freudenberger and Sportsmed moved the trial court to reconsider the conditions of the qualified protective order, arguing that its restrictions effectively deprived them from conducting ex parte interviews with Rhonda’s treating physicians at all when Alabama law allows such interviews and HIPAA does not prohibit them. The trial court denied the motion to reconsider. Freudenberger and Sportsmed subsequently appealed to the Alabama Supreme Court and sought a writ of mandamus to challenge the restrictions imposed by the trial court’s qualified protective order.
The Issue
The Alabama Supreme Court granted mandamus review on the basis of the trial court’s qualified protective order disregarding the work-product privilege. In analyzing the constraints of the trial court’s qualified protective order, the Court examined whether applying HIPAA’s Privacy Rule to ex parte interviews with treating physicians would supersede well-established Alabama law by severely limiting ex parte interviews between counsel and treating physicians.
HIPAA’s Privacy Rule provides a judicial exception that allows health care providers to disclose protected health information “in the course of any judicial or administrative proceeding,” pursuant to a court order.[1] The Privacy Rule, likewise, defines a “qualified protective order” as an order of a court or administrative tribunal or a stipulation by the parties that (1) prohibits the use or disclosure of protected health information “for any purpose other than the litigation or proceeding for which such information was requested” and (2) requires the return or destruction of that information at the end of the litigation or proceeding.[2]
The Majority Opinion
Justice Sellers wrote for the majority and noted that while HIPAA’s Privacy Rule defines “health information” to include oral information and, in turn, covers oral interviews, the Privacy Rule does not expressly address ex parte interviews between counsel and treating physicians. On the one hand, the Brewers relied heavily on State ex rel. Proctor v. Messina, 320 S.W. 3d 145 (Mo. 2010). In Messina, the Missouri Supreme Court interpreted the Privacy Rule’s “in the course of a judicial . . . proceeding” language as prohibiting ex parte communications because there was no mechanism for trial courts to directly participate in discovery matters where the health information of a plaintiff was relevant.[3] Freudenberger and Sportsmed, on the other hand, looked to the New York Court of Appeals’ decision in Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 850 N.Y.S.2d 345, 356, 880 N.E.2d 831, 842 (2007), that New York law permitting ex parte interviews and HIPAA could in fact coexist. Relying on Arons, Freudenberger and Sportsmed argued that the Privacy Rule merely imposes procedural requisites for the authorization and disclosure of private health information (as opposed to prohibiting ex parte interviews with treating physicians).
Weighing both the Messina and Arons decisions, the Alabama Supreme Court held that Alabama law allowing ex parte interviews and HIPAA privacy protections can coexist so long as the procedural requirements of the Privacy Rule are met. The Court further held that nothing in Alabama law prohibits defense counsel from seeking ex parte interviews with a plaintiff’s treating physicians, and HIPAA, likewise, does not prohibit ex parte interviews with treating physicians as a means of informal discovery. Specifically, the Court stated that the “federal Privacy Rule does not negate long-standing Alabama law allowing ex parte interviews with treating physicians; rather, it merely superimposes procedural prerequisites by requiring defense counsel to obtain a valid HIPAA authorization or, in this case, a court order complying with the provisions of [the Privacy Rule].” The Court went on to state that ex parte interviews are considered to be “in the course” of a judicial proceeding under HIPAA’s Privacy Rule because such interviews proceed alongside a pending lawsuit despite not being under the direct supervision of a court.
The Court also looked to the Eleventh Circuit’s decision in Murphy v. Dulay, 768 F.3d 1360, 1377 (11th Cir. 2014) in support of its decision. In Murphy, the Eleventh Circuit Court of Appeals held that a physician can, consistent with HIPAA, convey relevant health information about the plaintiff to the defendant upon a plaintiff’s execution of a valid HIPAA authorization or obtaining a qualified protective order as part of his pre-suit obligations.[4] The Eleventh Circuit in Murphy specifically noted that a medical provider can simultaneously comply with state and federal requirements.[5]
The Alabama Supreme Court concluded that no federal preemption issue existed because there were no laws in Alabama that could be deemed “contrary” to HIPAA as defined under the Privacy Rule because there is no Alabama law that would make it impossible for a health-care provider to comply with both state and federal requirements or that would present an obstacle to accomplishing HIPAA’s purpose.[6]
The above considered, the Court concluded that disclosure of private health information in ex parte communications is permissible pursuant to a qualified protective order that satisfies HIPAA’s Privacy Rule, such as the one that Freudenberger and Sportsmed sought. Accordingly, the Court determined that the more stringent qualifications imposed in the qualified protective order issued by the trial court were not justified based on the Brewers’ objection that the ex parte communications would violate HIPAA and the Alabama Rules of Civil Procedure.
Of note, the Court emphasized that trial courts “remain gatekeepers of discovery, and there may be special or exceptional circumstances, if good cause is shown, justifying the imposition of conditions and/or restrictions upon ex parte interviews with a litigant’s treating physicians.” The Court concluded, however, that the Brewers failed to prove the existence of any such circumstances warranting limitations on ex parte communications with Rhonda’s treating physicians. The Court directed the trial court to vacate its qualified protective order to the extent it imposed conditions upon Freudenberger and Sportsmed’s ex parte interviews with Rhonda’s treating physicians.
[1] 45 C.F.R. § 164.512(e)(2018).
[2] 45 C.F.R. § 164.512(e)(1)(v)(A).
[3] See State ex rel. Proctor v. Messina, 320 S.W. 3d 145 (Mo. 2010).
[4] See Murphy v. Dulay, 768 F.3d 1360, 1377 (11th Cir. 2014).
[5] Id.
[6] See 45 C.F.R. § 160.202 (2016); 45 C.F.R. § 160.202(6) (2016) (defining “state law”).
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