Harrold-Jones v. Drury, 062218 AKSC, S-16436

Docket Nº:S-16436
Opinion Judge:WINFREE, JUSTICE.
Party Name:TARRI HARROLD-JONES and DARRYL L. JONES, Petitioners, v. TUCKER DRURY, M.D.; WILLIAM PACE, M.D.; and DENALI ORTHOPEDIC SURGERY, P.C., Respondents.
Attorney:Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Petitioners. DonnaM. Meyers, Whitney L. Traeger, and Timothy J. Lamb, Delaney Wiles, Inc., Anchorage, for Respondents. Roger F. Holmes, Biss & Holmes, Anchorage, for Amicus Curiae Alaska State Medical Association. Margaret Simonian, Dil...
Judge Panel:Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
Case Date:June 22, 2018
Court:Supreme Court of Alaska
SUMMARY

The Alaska Supreme Court granted this petition for review to consider how the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) affected Alaska personal injury case law allowing a defendant ex parte contact with a plaintiff’s doctors as a method of informal discovery. The issue the Court requested the parties specifically brief was whether the federal law preempted... (see full summary)

 
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TARRI HARROLD-JONES and DARRYL L. JONES, Petitioners,

v.

TUCKER DRURY, M.D.; WILLIAM PACE, M.D.; and DENALI ORTHOPEDIC SURGERY, P.C., Respondents.

No. S-16436

Supreme Court of Alaska

June 22, 2018

Petition for Review from the Superior Court of the State of Alaska, Third Judicial District, Palmer, No. 3PA-16-01470 CI, Gregory Heath, Judge.

Darryl L. Thompson, Darryl L. Thompson, P.C., Anchorage, for Petitioners.

DonnaM. Meyers, Whitney L. Traeger, and Timothy J. Lamb, Delaney Wiles, Inc., Anchorage, for Respondents.

Roger F. Holmes, Biss & Holmes, Anchorage, for Amicus Curiae Alaska State Medical Association.

Margaret Simonian, Dillon & Findley, P.C., Anchorage, for Amicus Curiae Alaska Trial Lawyers.

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

OPINION

WINFREE, JUSTICE.

I.

INTRODUCTION

We granted this petition for review to consider how the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) - establishing medical privacy standards with specific exceptions - affected our personal injury case law allowing a defendant ex parte contact with a plaintiffs doctors as a method of informal discovery. We requested that the parties specifically brief whether the federal law preempted our case law, or, if not, whether federal law otherwise required us to overrule or modify our case law. We conclude that the federal law does not preempt our existing case law. But we also conclude that we should overrule our case law because its foundations have been eroded by a cultural shift in views on medical privacy and new federal procedural requirements undermining the use of ex parte contact as an informal discovery measure. We therefore hold that - absent voluntary agreement - a defendant may not make ex parte contact with a plaintiffs treating physicians without a court order, which generally should not be issued absent extraordinary circumstances. We believe that formal discovery methods are more likely to comply with the federal law and promote justice and that such court orders rarely, if ever, will be necessary.

II.

FACTS AND PROCEEDINGS

In August 2014 Tarri Harrold-Jones fractured her clavicle. She visited the emergency room and was referred to Denali Orthopedic Surgery. Dr. Tucker Drury, a Denali physician, later performed corrective surgery. Harrold-Jones experienced continued pain and discomfort following the surgical procedure and she returned to Denali, where Dr. William Pace evaluated her.

Harrold-Jones ended treatment at Denali and transferred her care to another doctor. Harrold-Jones later retained counsel who sent Denali a letter in early 2015, attaching a draft complaint alleging Drs. Drury's and Pace's malpractice and seeking compensation.1 Denali's counsel responded by requesting a medical release authorizing access to Harrold-Jones's "complete medical record or designated record set" and authorizing ex parte contact with her medical providers. Harrold-Jones refused to sign the authorization. Denali's counsel responded by narrowing the request to a release for Harrold-Jones's new doctor's office and to allow counsel to make ex parte contact with the new doctor.2 Harrold-Jones refused to sign this authorization and two similar requested authorizations in the following months.

Harrold-Jones filed a medical malpractice suit against Denali and the two doctors in April 2016. Denali's counsel renewed the request for a release authorizing ex parte contact with Harrold-Jones's new doctor three more times. Harrold-Jones continued to refuse this authorization, and she sought a protective order prohibiting Denali from having ex parte contact with her new treating doctor. Denali opposed and moved to compel Harrold-Jones to authorize such contact. The superior court denied Harrold-Jones's motion and granted Denali's in August 2016, relying on Langdon v. Champion as the basis for its ruling.[3]

Harrold-Jones petitioned for review, which we granted to decide whether HIPAA preempts our case law allowing ex parte contact with a plaintiffs treating physician or otherwise requires us to overrule or modify that case law.

III.

STANDARD OF REVIEW

"Whether a defendant's counsel has the right to engage in informal ex parte interviews with a plaintiff s treating physician is a question of law."4 The "interpretation of federal statutes" is a question of law.5 "Whether a federal statute preempts a state court rule is also a question of law."6 "We review questions of law de novo, 'adopting the rule of law most persuasive in light of precedent, reason, and policy.' "[7]

IV.

DISCUSSION

We granted Harrold-Jones's petition for review primarily to decide HIPAA's effect on "our existing case law regarding a plaintiffs waiver of the patient/physician privilege and ex parte communications between defense counsel and the plaintiffs treating physicians."[8] Having reviewed HIPAA and the regulations promulgated under its authority, we conclude that federal law does not preempt our decisions allowing ex parte communications between defense counsel and a plaintiffs treating physicians. But new procedural requirements HIPAA imposes on ex parte contact - amidst a cultural shift emphasizing medical privacy - significantly undermine the reasoning behind our original decisions. Based on this change in circumstances, we overrule Langdon and hold that - absent agreement by the plaintiff - a defendant or defendant's counsel may not make ex parte contact with a plaintiffs treating physician unless authorized to do so by a court order, which we believe generally should be available only under extraordinary circumstances.

A. HIPAA Provides Privacy Protections, With Relevant Exceptions.

We begin our analysis with the federal law in question. Congress enacted HIPAA in 1996 to improve health insurance coverage, combat fraud, and simplify health insurance administration.9 Subtitle F of HIPAA addressed patient privacy by defining protected health information, defining entities who must protect health information, and requesting further privacy recommendations from the Department of Health and Human Services (HHS).10 Congress instructed HHS to promulgate further privacy regulations if Congress failed to do so within three years of HIPAA's enactment.11 After the three years passed without congressional action, HHS promulgated the "Privacy Rule, "12 a series of regulations governing permitted uses and disclosures of protected health information. Together, Subtitle F of HIPAA and the Privacy Rule form the federal law at issue in this case, which we will refer to collectively as HIPAA for ease of reference.

1. Overview of privacy protections

HIPAA's privacy framework begins with express preemption. HIPAA preempts contrary state laws unless they are more stringent than HIPAA itself.13 A state law is "contrary" to HIPAA if a covered entity would find it impossible to comply with both the state and federal requirements or if the state law is an obstacle to the accomplishment of the full purposes of HIPAA section 264.14

HIPAA then protects a subject individual's privacy with a two-part rule regarding protected health information.15 First, HIPAA broadly prohibits any covered entity16 from using or disclosing[17] protected health information.18 Denali does not dispute that ex parte contact with Harrold-Jones's treating physician would constitute use or disclosure of protected health information by a covered entity. Second, HIPAA provides specific exceptions to the prohibition for enumerated uses and disclosures.19Only two HIPAA exceptions require disclosure;20 the remainder leave the choice of disclosure to the covered entity.21 Two of these permissive exceptions are applicable here. First, a covered entity may disclose protected health information with a valid authorization from the subject individual (the authorization exception).22 Second, a covered entity may disclose protected health information in the context of a judicial or administrative proceeding (the litigation exception).23

2. The authorization exception

The authorization exception allows permissive disclosure once the subject executes a valid authorization.24 A valid authorization contains at minimum: (1) a statement of the remuneration, if any is involved; (2) a description of the information to be used or disclosed identified in a specific and meaningful fashion; (3) "[t]he name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure"; (4) "[t]he name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure"; (5) "[a] description of each purpose of the requested use or disclosure"...

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