Brewer v. Crestwood Med. Ctr., LLC (Ex parte Freudenberger)
| Decision Date | 30 June 2020 |
| Docket Number | 1190159 |
| Citation | 315 So.3d 573 |
| Parties | EX PARTE Curt FREUDENBERGER, M.D., and Sportsmed Orthopedic Surgery & Spine Center, P.C. (In re: Rhonda Brewer and Charlie Brewer v. Crestwood Medical Center, LLC ; Curt Freudenberger, M.D.; and Sportsmed Orthopedic Surgery & Spine Center, P.C. ) |
| Court | Alabama Supreme Court |
George E. Knox, Jr., and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for petitioners.
S. Shay Samples and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham, for respondents.
Cheairs M. Porter, Medical Association of the State of Alabama, Montgomery, for amicus curiae Medical Association of the State of Alabama, in support of the petitioners.
Gregg B. Everett and Christopher Richard of Gilpin Givhan, P.C., Montgomery, for amicus curiae Alabama Hospital Association, in support of the petitioners.
David G. Wirtes, Jr., of Cunningham Bounds, LLC, Mobile; and R. Edwin Lamberth of Gilmore Law Firm, Mobile, for amicus curiae Alabama Association for Justice, in support of the respondents.
Two of the defendants below, Curt Freudenberger, M.D., and Sportsmed Orthopedic Surgery & Spine Center, P.C. ("Sportsmed Orthopedic"),1 petition this Court for a writ of mandamus directing the Madison Circuit Court to vacate its October 10, 2019, protective order to the extent it imposes conditions upon ex parte interviews defense counsel intends to conduct with physicians who treated one of the plaintiffs, Rhonda Brewer, in connection with her injuries. We grant the petition and issue the writ.
In August 2019, Rhonda and her husband, Charlie, sued Dr. Freudenberger and Sportsmed Orthopedic (hereinafter sometimes collectively referred to as "the defendants"), asserting claims of medical malpractice based on injuries Rhonda allegedly suffered during the course of a surgical procedure performed by Dr. Freudenberger. Charlie also asserted a claim of loss of consortium. Before discovery, the defendants moved for the entry of a "qualified protective order," pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and filed a proposed order with their motion. Among other things, the defendants’ proposed order allowed the parties’ attorneys to request ex parte interviews with Rhonda's treating physicians, who could either grant or deny such request;2 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 the proposed order, arguing that defense counsel's ex parte interviews with Rhonda's treating physicians would violate both HIPAA and the Alabama Rules of Civil Procedure.
The trial court thereafter entered a qualified protective order authorizing the disclosure of Rhonda's protected health information; the order, however, imposed the following conditions upon defense counsel's contacts with her treating physicians:
"No ex parte interviews will 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."
The defendants moved the trial court to reconsider its order, arguing that its limitations, if not elimination, of a valid discovery tool was without any basis in Alabama law or HIPAA. They specifically contended that Alabama law allowed ex parte interviews with treating physicians, that HIPAA did not prohibit ex parte interviews with treating physicians, and that the restrictions imposed effectively deprived them from conducting ex parte interviews. The trial court denied the motion to reconsider. This mandamus petition followed.
Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003). Ex parte Ocwen, 872 So. 2d at 813.
Mandamus review is appropriate in this case because the trial court's protective order involves a disregard of the work-product privilege. Ex parte Stephens, 676 So. 2d 1307, 1310 (Ala. 1996), overruled on other grounds, Ex parte Henry, 770 So. 2d 76 (Ala. 2000). As the defendants point out, the trial court's order allows the Brewers’ counsel to peer into defense counsel's mental impressions and effectively discloses defense strategies. Rule 26(b)(4), Ala. R. Civ. P., expressly states that "the trial court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the ligation." See also Hickman v. Taylor, 329 U.S. 495, 510, 67 S.Ct. 385, 91 L.Ed. 451 (1947) ().
In 1996, the United States Congress enacted, and the President signed into law, HIPAA. ( Pub. L. No. 104-191, 110 Stat. 1936 (1996) ).3 Congress enacted HIPAA, in part, to protect the privacy of an individual's health information.4 The Department of Health and Human Services subsequently proposed and adopted the "Privacy Rule," which consists of a series of regulations governing permitted uses and disclosures of protected health information.5 The Privacy Rule prohibits a "covered entity"6 such as a health-care provider from using or disclosing protected health information without written authorization, unless the use or disclosure of that information is specifically permitted or required by the Privacy Rule. 45 C.F.R. §§ 164.502, 164.506, 164.508, 164.510, 164.512 (2018).
Relevant to medical-malpractice cases in general and to this dispute in particular, the Privacy Rule permits a healthcare provider to disclose protected health information "in the course of any judicial or administrative proceeding," pursuant to a court order; in such situation, written authorization is not required. 45 C.F.R. § 164.512(e)(2018). This permissive disclosure is known as the "judicial exception" to the Privacy Rule. Under the Privacy Rule, a "qualified protective order" is 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. 45 C.F.R. § 164.512(e)(1)(v)(A).
In this case, the parties dispute whether the judicial exception is applicable to ex parte interviews with treating physicians such that HIPAA requirements would supersede longstanding Alabama law by severely limiting ex parte interviews. It is undisputed that the Privacy Rule does not expressly mention ex parte interviews between counsel and treating physicians. However, the definition in the Privacy Rule of "health information" includes oral information; thus, it is widely accepted that, by its terms, HIPAA covers oral interviews. See 45 C.F.R. § 160.103(e) (2016). The Brewers argue that ex parte interviews do not fall within the judicial exception because, they say, the nature of the interviews renders them outside the course of any judicial proceeding. The Brewers rely on State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. 2010), in which the Missouri Supreme Court interpreted the language "in the course of a judicial ... proceeding," as precluding ex parte communications because, the Court reasoned, such communications were not "under the supervisory authority of the court either through discovery or through other formal court procedures." 320 S.W.3d at 156. The Missouri Supreme Court noted that, because the Missouri Rules of Civil Procedure did not provide a mechanism for courts to oversee ex parte communications, a meeting where those communications occurred was not a judicial proceeding. Id. at 157. Taken to its logical conclusion, the adoption of such a rule would require trial courts to directly participate in discovery matters where the health information of a plaintiff was relevant.
The defendants, on the other hand, argue that the Privacy Rule does not prohibit ex parte interviews with treating physicians; rather, they say, it merely imposes procedural prerequisites to authorize and protect the disclosure of private health information. The defendants cite Arons v. Jutkowitz, 9 N.Y.3d 393, 415, 850 N.Y.S.2d 345, 356, 880 N.E.2d 831, 842 (2007), in which the New York Court of Appeals concluded that New York law permitting ex parte interviews and HIPAA could coexist because, the court reasoned, HIPAA "merely superimposes procedural requirements" onto state law:
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