Caldwell v. Chauvin, 2014–SC–000390–MR

• Decision Date: 11 June 2015
• Docket Number: 2014–SC–000390–MR
• Citation: 464 S.W.3d 139
• Parties: Stacey Caldwell, Appellant v. Honorable A.C. McKay Chauvin, Judge, Jefferson Circuit Court, Appellee and Dr. Frank P. Castro, d/b/a Palo Alto Spine, LLC, Real Party in Interest
• Court: United States State Supreme Court — District of Kentucky

464 S.W.3d 139

Stacey Caldwell, Appellant

v.Honorable A.C. McKay Chauvin, Judge, Jefferson Circuit Court, AppelleeandDr. Frank P. Castro, d/b/a Palo Alto Spine, LLC, Real Party in Interest

2014–SC–000390–MR

Supreme Court of Kentucky.

RENDERED: JUNE 11, 2015

Counsel for Appellant: Eric M. Lamb, Lamb & Lamb, PSC, Erwin A. Sherman, Sherman and Osborne

Appellee: Judge Arch Cox McKay Chauvin, Jefferson Circuit Court, Division 8

Counsel for Real Party in Interest, Dr. Frank P. Castro, D/B/A Palo Alto Spine, LLC: Donald Kenneth Brown, Jr., Casey Alan Krill, Mark Edward Hammond, Robert Clayton Veldman, O'Bryan, Brown & Toner, PLLC

Counsel for Amicus Curiae Kentucky Justice Association: H. Philip Grossman, Grossman & Moore, PLLC, Paul A. Casi, II, Jeffrey Wayne Adamson, Paul A. Casi, II, P.S.C., Kevin Crosby Burke

Counsel for Amicus Curiae Kentucky Defense Counsel: Bradley A. Case, Dinsmore & Shohl, LLP

Opinion

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

Litigants have historically been permitted to conduct ex parte¹ interviews with fact witnesses. These interviews serve various purposes but are mainly directed at investigating the facts of the case and curtailing litigation costs by allowing litigants to gauge the usefulness of a witness's potential testimony by interviewing the witness before paying for a discovery deposition.

Whether this time-honored method of informal discovery extends to the plaintiffs treating physicians and what role the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) plays in regulating these interviews has been an issue across the country for some time. And the issue has come before many of Kentucky's circuit courts and the federal courts in both the Western and Eastern Districts of Kentucky. Today we decide conclusively whether litigants in Kentucky may, and under what conditions, engage in ex parte interviews with treating physicians.

In an original action before the Court of Appeals, Stacey Caldwell, the plaintiff in the underlying medical-malpractice action, sought a writ of prohibition preventing the trial court from enforcing its order permitting counsel for Dr. Frank Castro,² the defendant in the underlying action, to contact Caldwell's treating physicians ex parte. Importantly, no provision in the trial court's order compelled any physician to have contact with Castro's counsel or disclose any information, nor did it authorize disclosure of protected health information; whether or not to disclose any information was left to the treating physician's discretion. Before the Court of Appeals, Caldwell argued that because she was entitled to confidentiality in her communications with her healthcare providers, the trial court's order permitting ex parte contact with those providers was in error.

The Court of Appeals declined to issue a writ because it found Caldwell did not have a right to confidentiality in her communications with her treating physicians. As a result, the Court of Appeals concluded the trial court's order was not erroneous.

Based on our review of Kentucky and federal law, we conclude that no law inhibits litigants from seeking ex parte interviews with the opposing party's treating physicians. But the disclosure of medical information during those ex parte meetings is controlled by HIPAA. For disclosure to be permitted, the party must first obtain a court order authorizing disclosure in a voluntary ex parte interview. Upon review of the instant order, it is clear the trial court declined to authorize ex parte disclosure of Caldwell's health information thus failing to satisfy HIPAA. But because the trial court is explicit in its refusal to authorize ex parte disclosures, we find it unnecessary to issue an extraordinary writ.

I. FACTUAL AND PROCEDURAL HISTORY.

The underlying litigation stems from a discectomy

Castro performed on Caldwell.

Caldwell had a long history of spinal problems predating the procedure, but she alleges the surgery was unnecessary and negligently performed. Caldwell claims she suffered painful nerve damage and restricted mobility because of this surgery.

During the course of discovery and after obtaining Caldwell's medical records, Castro moved the trial court to enter a qualified protective order permitting him to make ex parte contacts with Caldwell's healthcare providers. Following a hearing, the trial court concluded there is no bar prohibiting Castro's counsel from contacting ex parte Caldwell's healthcare providers because they are ultimately fact witnesses and the information they possess is not subject to an evidentiary privilege. The trial court's order³ limited the scope of Castro's counsel's permissible ex parte contacts to those physicians who treated Caldwell “for the injuries that are the subject matter of this litigation” but expressly declined to authorize disclosure of Caldwell's health information. The court's order also explicitly stated it was neither requiring any physician to speak with Castro nor compelling disclosure of any information to Castro, noting the “treating physicians are free to accept or decline counsel's request as they see fit.”

Caldwell filed a petition for a writ of prohibition and a motion for intermediate relief⁴ with the Court of Appeals. In her petition, Caldwell argued, as she does now, she was entitled to a writ because the trial court's order violated the physician-patient privilege, her right to confidentiality in her communications with her doctors, and the order was not authorized by federal law. The Court of Appeals denied her motion for intermediate relief without discussion. It also omitted analysis of the writ prerequisites and proceeded directly to the merits of her allegation of error.

Upon reaching the merits, the Court of Appeals declined to issue a writ and presented two main reasons for so holding. First, it concluded no Kentucky law prohibits the trial court from authorizing ex parte correspondence with nonexpert treating physicians. And second, the Court of Appeals reasoned the trial court's order did not violate any right Caldwell may have to privacy of her medical information because the order does not compel any disclosure. The court declined to address the impact of HIPAA's privacy regulations on Castro's ability to communicate ex parte with Caldwell's physicians, deciding “the order of the trial court relied solely upon Kentucky authority.”

Caldwell appeals that denial to this Court as a matter of right.⁵

II. ANALYSIS.

The issuance of a writ is an extraordinary remedy that is disfavored by our jurisprudence.⁶ We are, therefore, “cautious and conservative both in entertaining petitions for and in granting such relief.”⁷

A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.⁸

Caldwell makes no proper argument that the trial court was without jurisdiction to enter the challenged discovery order.⁹ She seeks the second class of writ. And when seeking a writ of the second class, a petitioner must first show she has no adequate remedy by appeal or otherwise. If this requirement can be met, the petitioner must then show she will suffer great injustice or irreparable harm absent the issuance of a writ. This has consistently been defined as injury of a “ruinous nature.”¹⁰

The latter requirement is not absolute, however. In what has come to be known as the “certain-special-cases exception,” our precedent allows waiver of the great injustice and irreparable harm element in cases where the instant harm may not rise to the level of irreparable but a “substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error is necessary and appropriate in the interest of orderly judicial administration.”¹¹

Proof of the elements described above is a condition precedent to contemplation of the merits underlying a writ petition. Strict adherence to these prerequisites “is a practical and convenient formula for determining, prior to deciding the issue of alleged error, if petitioner may avail himself of this remedy.”¹² These strictures evince a reluctance to reach the merits of alleged errors in writ proceedings. Indeed, the test that must be satisfied before the Court may analyze the alleged error was designed expressly to limit “the number of writ cases that proceed to the merits of the controversy”¹³ because writ proceedings “necessitate an abbreviated record which magnifies the chance of incorrect rulings that would prematurely and improperly cut off the rights of litigants.”¹⁴ It bears repeating that the issuance of a writ is inherently discretionary. Even if the requirements are met and error found, the grant of a writ remainswithin the sole discretion of the Court.¹⁵

Because of the discretion inherent in granting a writ, we review the decision of the Court of Appeals for an abuse of discretion. When questions of law or findings of fact made by the Court of Appeals en route to their ultimate decision are raised, however, we review de novo and for clear error, respectively. The Court of Appeals in the present case has omitted analysis of the writ prerequisites in its opinion denying Caldwell's petition for a writ, opting instead to proceed directly to the merits.¹⁶ So we review the availability of the writ remedy de novo.

Caldwell's argument in favor of her entitlement to an extraordinary writ is grounded in state-law principles. She claims the trial court's order permitting Castro's counsel to communicate ex parte with her treating physicians was error because: communications with treating physicians are, or should be, treated as...