The Kentucky Supreme Court rendered an opinion on June 11, 2015, establishing the law in Kentucky on ex parte communications with a party’s non-expert treating physician, i.e. interviewing the Plaintiff’s treating physicians in advance of a deposition. In Caldwell v. Hon. A.C. McKay Chauvin, the plaintiff in an underlying medical negligence action sought a writ from the Kentucky Court of Appeals preventing the trial court from enforcing its order permitting the defendants to make ex partecontacts with plaintiff’s treating physician. The basis for the plaintiff’s position was that she claimed that a privilege existed under Kentucky law protecting communications between the patient and the physician, and thus prevented disclosure of those communications. She also argued that HIPAA did not allow for ex parte interviews under any circumstances.
The Court held that there is no law (Kentucky or federal) prohibiting a party from making an ex parte contact with the opposing party’s non-expert treating physician; the physician is a fact witness and the information he or she possesses is not subject to an evidentiary privilege. Included in this portion of the Opinion was the Court’s holding that there is no physician-patient privilege under the Rules of Evidence. The Court, however, went on to hold that the treating physician’s disclosure of information is still subject to HIPAA. Accordingly, for an ex parte interview to proceed, the Court held there must be a valid court order in place authorizing the disclosure of PHI in a voluntary ex parte interview pursuant to 45 CFR §164.512(e)(1)(i). In Caldwell, the trial court’s order permitted the voluntary ex parte interviews, but did not expressly authorize disclosure of the patient’s information, leaving it to the discretion of the treating physician. Thus, the Court held that any disclosure of PHI under that order would likely violate HIPAA. While the Court held that physician ethics rules did not hold the weight of law to create a privilege, they may cause a physician to refuse to engage in an ex parte interview even if a court order authorized disclosure.
The Kentucky Supreme Court’s opinion is not final. However, it will become final on July 2, 2015 unless a party files a petition for rehearing or modification of the opinion. There are several takeaways from the Court’s opinion, whether one is a party to the case or employs or is the treating physician to be interviewed. First, ex parte communications are permitted. Counsel for a party opposing the patient may reach out to the physician with or without a court order, as long as the communications do not involve HIPAA-protected disclosures (e.g., scheduling a deposition). Second, if the party making the ex parte communication seeks PHI during the interview, he/she must ensure that an order complying with 45 CFR §164.512(e)(1)(i) is in place and expressly authorizes the disclosure of the information sought. Finally, if the person involved is the treating physician, he or she should also ensure that such an order is in place prior to making any disclosures or risk sanctions. The treating physician should also make sure that a HIPAA-compliant ex parte disclosure would not subject him or her to any ethical violations or disciplinary proceedings. And as always, the ex parte interviews are informal discovery, and therefore voluntary. Thus, the treating physician can always decline the interview, which will likely be followed by a formal request for a non-ex parte examination, such as a deposition subpoena.
This article was authored by Jay Ingle and Chacey R. Ford, Jackson Kelly PLLC.