Homes v. Nightingale

• Citation: 158 P.3d 1039,2007 OK 15
• Decision Date: 20 March 2007
• Docket Number: No. 103,762.,103,762.
• Parties: Margie L. HOLMES, Administrator of the Estate of Teresa Lee Elam, Petitioner, v. Honorable Rebecca Brett NIGHTINGALE, District Judge, Respondent.
• Court: Oklahoma Supreme Court

158 P.3d 1039

2007 OK 15

Margie L. HOLMES, Administrator of the Estate of Teresa Lee Elam, Petitioner, v. Honorable Rebecca Brett NIGHTINGALE, District Judge, Respondent.

No. 103,762.

Supreme Court of Oklahoma.

March 20, 2007.

Application to Assume Original Jurisdiction and Petition For Writ of Prohibition.

¶ 0 The petitioner, Margie L. Holmes (Holmes/administrator), represents the estate of Teresa Lee Elam (Elam/patient) in a medical malpractice suit related to Elam's death. The real parties in interest are St. John Medical Center, Inc. (St. John/hospital) and Interim Healthcare of Tulsa, Inc. (Interim/collectively, health care providers). Holmes seeks to enjoin the respondent, Honorable Rebecca Brett Nightingale (trial judge), from enforcing an order authorizing the release of protected health information. We determine that a court order permitting, rather than mandating, oral communication with health care providers entered as a result of an individual clearly placing mental or physical conditions in issue by filing suit does not contravene HIPAA's confidentiality requirements. Nevertheless, the order presented does not: a) conform with the statutory requirements of 76 O.S. Supp.2005 § 19 and 12 O.S. Supp.2004 § 2503(D)(3) precluding general disclosure of all of a party's medical records and restricting discovery to materials relevant to any issue in the malpractice action or to the injury or death in litigation; or b) adequately advise physicians that they may not be compelled to participate in oral ex parte communications. We assume original jurisdiction and grant the writ. The cause is remanded for the entry of an order consistent with this opinion.

ORIGINAL JURISDICTION ASSUMED; WRIT GRANTED; CAUSE REMANDED.

Steven R. Hickman, Frasier, Frasier & Hickman, LLP, Tulsa, OK, for Petitioner.

Karen L. Callahan, Leslie C. Weeks, Beth S. Reynolds, Rodolf & Todd, Tulsa, OK, for Real Party in Interest, St. John Medical Center, Inc.

Jeffrey A. Glendening, James A. Higgins, Tara P. Goodnight, The Glendening Law Firm, P.L.L.C., Tulsa, OK, for Real Party in Interest, Interim Healthcare of Tulsa, Inc.

WATT, J.

¶ 1 We assume original jurisdiction to decide an issue not addressed in a published opinion¹ since the enactment in 1996 of the Health Insurance Portability and Accountability Act (HIPAA),² 42 U.S.C. § 1320d, et. seq.³ The initial issue presented is whether when an individual has clearly placed mental or physical conditions in issue by filing suit,⁴ a court order allowing, but not mandating, oral communications with health care providers violates HIPAA's confidentiality provisions.

¶ 2 We hold that a court order permitting, rather than mandating, oral communication with health care providers entered as a result of an individual clearly placing mental or physical conditions in issue by filing suit does not contravene HIPAA's confidentiality requirements. Our determination is supported by: 1) 45 CF.R. § 164.512(e)(1) governing the procedural requirements and safeguards imposed by HIPAA which clearly anticipates disclosures of protected health information pursuant to a court order;⁵ 2) extant federal jurisprudence;⁶ and 3) this Court's pre-HIPAA decisions in Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151 and Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 recognizing that where there has been a waiver of the physician/patient privilege pursuant to § 19(B)(1) of title 76,⁷ judicial authority may not be utilized to facilitate or impede ex parte communications with the plaintiff's health care providers.

¶ 3 Our favorable resolution of the issue regarding ex parte communications requires us to examine the order issued for compliance with 76 O.S. Supp.2005 § 19 and 12 O.S. Supp.2004 § 2503(D)(3).⁸ Furthermore, we must determine whether the order adequately advises physicians that they may not be compelled to participate in oral ex parte communications.

¶ 4 Although the order refers to the statutory requirements of 76 O.S. Supp.2005 § 19 and 12 O.S. Supp.2004 § 2503(D)(3), we hold that its language is overly broad and that it falls short of meeting the statutorily imposed standards. The statutes clearly limit any discoverable materials to information relevant to the claims or defenses asserted in the malpractice action or to the injury or death in litigation. Furthermore, the order does not advise clearly that no physician may be compelled to participate in ex parte communications. Therefore, jurisdiction is assumed, the writ is granted and the cause is remanded for entry of an order consistent with this opinion.

FACTS

¶ 5 On October 14, 2005, Theresa Lee Elam (Elam/patient/decedent) was injured in an automobile accident. Elam died on February 23, 2006, while under the care of Interim Healthcare of Tulsa and St. John Health System, Inc. On April 11, 2006, Holmes filed suit on behalf of Elam's estate asserting claims of medical negligence against the health care providers. The following week, an amended petition was filed identifying St. John Medical Center, Inc. as a defendant and medical provider.

¶ 6 Following Holmes' failure to execute allegedly HIPAA-compliant medical authorizations provided by St. John, the hospital filed a motion to dismiss or in the alternative an application for release of protected health information on May 19, 2006. Interim filed a notification of intent to obtain protected health care information on June 27, 2006. In an order signed on that date and filed on July 5, 2006, the trial court ordered the release of Elam's protected health care information "pursuant to 76 O.S. § 19(B), 12 O.S. § 2503(D)(3) and 45 C.F.R. § 164.512(e)(1)(i) of the Health Insurance Portability and Accountability Act" which authorized the patient's health care providers to "orally communicate and to discuss such `protected health information' if they choose with the parties' attorneys of record in this action."⁹

¶ 7 Holmes filed an application to assume original jurisdiction and petition for writ of prohibition on September 13, 2006. The health care providers filed their responses on September 29th.

¶ 8 A COURT ORDER PERMITTING, RATHER THAN MANDATING, ORAL COMMUNICATION WITH HEALTH CARE PROVIDERS ENTERED AS A RESULT OF AN INDIVIDUAL CLEARLY PLACING MENTAL OR PHYSICAL CONDITIONS IN ISSUE BY FILING SUIT DOES NOT CONTRAVENE HIPAA'S CONFIDENTIALITY REQUIREMENTS.

¶ 9 Holmes argues that the trial court's order allowing ex parte oral communications with Elam's health care providers violates HIPAA's confidentiality requirements. Nevertheless, she recognizes that HIPAA allows the disclosure of protected health information pursuant to court order.¹⁰ Essentially, Holmes contends that only an order compelling the release of protected health care information, rather than an order allowing such release, will satisfy HIPAA requirements. In contrast, the health care provider asserts that the order issued is HIPAA compliant and conforms with this Court's holdings in Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230 and Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151. Here, we address Seaberg and Johnson only to the extent that they relate to the issuance of such an order — not as to whether the order issued conforms in all respects with these opinions.

¶ 10 a) Federal regulations governing the procedural requirements and safeguards imposed by HIPAA clearly anticipate disclosures of protected health information pursuant to a court order.

¶ 11 Congress enacted HIPAA in 1996 entrusting the Secretary of the Department of Health and Human Services (Secretary) with the task of the creation of national standards to ensure the integrity and confidentiality of individually identifiable health information.¹¹ Thereafter, the Secretary promulgated 45 C.F.R. § 164.512. Subsection (e) of the regulation specifically addresses disclosures for judicial and administrative procedures providing two situations in which covered entities may release protected health information:

". . . (1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or

(ii) In response to a subpoena, discovery request, or other lawful process . . ." [Emphasis supplied.]

The clear language of the regulation anticipates not only that there may be disclosures pursuant to the filing of a lawsuit but that the disclosures may be allowed where a court order so provides. Here, the first condition is met — the court order clearly allows such disclosures.

¶ 12 The defendant and the medical provider argue essentially that, as long as there is an order signed by a judge, there is no limit on the scope of disclosure of protected health information under section 19(B) or HIPAA. They argue that, because the HIPAA regulations provide for disclosure "in response to an order of a court" under section 164.512(e)(1)(i), no restriction on the scope of disclosure applies. That argument, however, ignores the rest of the sentence which requires the "covered entity [to disclose] only the protected health information expressly authorized by such order."¹² Clearly a limitation on the scope of permitted disclosure is imposed. The source of that limitation is the privacy requirements enumerated at § 164.512(e)(1)(ii-vi). The privacy requirements of HIPAA apply whether or not there is court authorization for the disclosure of protected medical information. In other words, HIPAA does not prohibit ex parte communication through a HIPAA-compliant court authorization. This holding is supported by federal jurisprudence.

¶ 13 b) Although there is little federal jurisprudence on the issue of ex parte communications under HIPAA, the existing case law supports a finding that such...