In re Collins

• Decision Date: 05 June 2009
• Docket Number: No. 07-0737.,07-0737.
• Citation: 286 S.W.3d 911
• Parties: In re Lester COLLINS, M.D., Relator.
• Court: Texas Supreme Court

286 S.W.3d 911

In re Lester COLLINS, M.D., Relator.

No. 07-0737.

Supreme Court of Texas.

Argued November 12, 2008.

Decided June 5, 2009.

R. Brent Cooper, Diana L. Faust, Devon J. Singh, Cooper & Scully, P.C., Dallas, TX, Ken W. Good, Vance Lane Metcalf, Don W. Kent, David Wayne Frost, Kent Good Anderson & Bush, P.C., Tyler, TX, for Relator.

William H. "Bill" Liebbe, Kelly Liebbe, Law Office of Bill Liebbe, P.C., Tyler, TX, Peter M. Kelly, Law Office of Peter M. Kelly, P.C., Houston, TX, for Real Party In Interest.

Stephen Miles Spitzer, Cowles & Thompson, Tyler, TX, for person Interested In Case.

William David George, Connelly Baker Wotring LLP, Houston, TX, Michael S. Hull, Hull Hendricks & MacRae, L.L.P., Austin, TX, for Amicus Curiae.

Justice O'NEILL delivered the opinion of the Court.

In this mandamus proceeding, we must decide whether the trial court abused its discretion by granting a protective order barring the defendants, their attorneys, and any associated persons from having any ex parte contacts with any of the plaintiff's non-party medical providers. Because the plaintiff failed to establish that any of the providers she authorized to release medical information possessed irrelevant, privileged information, we hold that the trial court abused its discretion.

I. Background

Real party in interest Kelly Regian began seeing the relator, Dr. Lester Collins, for headaches in 2002. Over time, her symptoms worsened. More than two years later, her primary care physician ordered an MRI, which revealed nasopharyngeal carcinoma. Regian was referred to the MD Anderson Cancer Center in Houston, where she was diagnosed with stage IV nasopharyngeal carcinoma. She and her husband later sued Collins and the ETMC Neurological Institute, a professional association with which Collins was affiliated, alleging that Collins's negligence in failing to diagnose the condition allowed the cancer to progress from a curable to an incurable stage.

Several months before filing the suit, in compliance with section 74.051(a) of the Civil Practice and Remedies Code, the Regians sent Collins written notice of a health care liability claim arising from his alleged failure "to timely diagnose and refer Kelly Regian for treatment of nasopharyngeal carcinoma." Attached to the notice was the section 74.052 authorization form for release of protected health information that the Code requires a claimant to provide in order for a health care liability claim to proceed. TEX. CIV. PRAC. & REM.CODE § 74.052(a). The Legislature prescribed the form's precise language as part of the civil liability reforms instituted by its passage of House Bill 4 in 2003. Id. § 74.052(c).

In the form, Regian authorized Collins to obtain and disclose, within specified parameters, health information for the "specific purposes" of "facilitat[ing] the investigation and evaluation of the health care claim described in the accompanying Notice of Health Care Claim," and "[d]efen[ding] . . . any litigation arising out of the claim." The authorization extended to "verbal as well as . . . written" information. See id. It provided that the authorization would expire upon resolution of the claim asserted or at the conclusion of any litigation, and that "without exception, [Regian would] have the right to revoke th[e] authorization in writing," subject to the consequences imposed by section 74.052 of the Code.¹ Id. In exhibit "A" attached to the form, Regian authorized the disclosure of information in the custody of a list of health care providers who had examined or treated Regian in connection with the injuries alleged to have been sustained as the result of Collins's alleged negligence; all of the health care providers listed in this section were associated with the MD Anderson Cancer Center. In exhibit "B," Regian authorized the release of information in the custody of health care providers who had treated her in the five years preceding the events leading to her claim against Collins. Finally, in exhibit "C," the form designated "Excluded Health Information" — that is, information in the possession of health care providers "to which this authorization does not apply because [Regian] contend[s] that such health information is not relevant to the damages being claimed or to [Regian's] physical, mental, or emotional condition." In this section, Regian listed seven health professionals, none of whom were listed in the previous sections. Although section 74.052(c) instructs claimants to designate "the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure," Regian listed only the health care providers' names.

Several months after sending the notice and authorization form, the Regians filed the lawsuit underlying this mandamus proceeding. Within days of the defendants' answers, the Regians sought a protective order prohibiting the defendants from engaging in ex parte communications with Kelly's treating physicians. In their motion, the Regians complained that it was "common practice for a medical malpractice defendant's lawyer to have ex parte communications with an injured claimant's prior and subsequent treating physicians in order to obtain information that goes beyond what is contained in the plaintiff-patient's medical records." They contended that a defendant's attorney might elicit opinion testimony not reflected in the health care provider's written records that could be used to ambush the plaintiff at trial:

Typically, with a wink and a smile, the defense lawyer will start with a perfunctory "You're under no obligation to talk to me, and I only want to discuss those things that are relevant to the issues in the lawsuit." The treating physician may then be presented with a copy of the original petition and the defendant's answer and affirmative defenses, with a comment along the lines of "[t]his is what the plaintiff alleges and this is what we are saying." From there the discussion becomes a full-fledged fishing expedition for a non-retained expert, and a headlong foray into everything but the care and treatment provided to the plaintiff.

(Emphasis in original). The Regians further maintained that by filing suit, a health care liability claimant waives the physician-patient privilege only as to information relevant to a mental or physical condition of the patient that a party relies on as part of a claim or defense, and that only by prohibiting ex parte contacts can a court assure that irrelevant information is not disclosed. The motion did not identify any health care providers who possessed both relevant and irrelevant information. Collins opposed the motion. After a nonevidentiary hearing, the trial court granted the motion,² prohibiting the defendants, their lawyers, and all persons associated with them from having any ex parte contacts with any of Regian's non-party treating physicians.

Collins then sought a writ of mandamus from the court of appeals. The court of appeals recognized that section 74.052(c) contemplates the verbal disclosure of protected health information, but concluded that the statute does not explicitly address whether verbal information may be obtained ex parte. 224 S.W.3d 798, 802. The court also concluded that "ex parte communications, in some instances, may be more practical, less time consuming, and less costly than formal discovery." Id. at 803. Thus, the court reasoned, allowing ex parte communications would be consistent with the Legislature's objectives in enacting the statute. Id. The court noted that the statute provides a mechanism to allow a claimant to protect irrelevant information by identifying health care providers who possess information the claimant contends is irrelevant. Id. It further noted, however, that "exclusion of information by date does not protect irrelevant, privileged information that is acquired in the same date as relevant information." Id. at 803 n. 3. The court observed that various arguments against allowing ex parte communications have been made, including "the lack of safeguards against the revelation of privileged information, the chilling effect potential breaches of confidentiality may have on a patient's communication with a physician, and the possibility of questionable conduct by defense counsel." Id. at 804. But it downplayed those risks, noting that defense counsel could be subject to sanctions for unethical conduct and that it was unlikely patients would withhold information and potentially jeopardize their health based on the mere possibility that the information might be discovered through ex parte communications in a subsequent lawsuit. Id. The court concluded that section 74.052 did "not change existing law and therefore does not prohibit a defendant from communicating ex parte with a claimant's . . . health care providers." Id. at 805. Nevertheless, the court held that the trial court did not abuse its discretion in issuing the protective order because the statute does not expressly prohibit the issuance of protective orders prohibiting ex parte contacts. Id. at 806. We granted oral argument in this case to determine whether the order issued by the trial court amounts to an abuse of discretion.

II. Analysis

A. Parties' Arguments

Collins maintains that the trial court abused its discretion in granting the protective order because section 74.052(c) expressly contemplates ex parte communications in allowing a defendant health care provider and the providers' attorneys to obtain "verbal" information. Collins contends the trial court's order undermines the statute's underlying purpose of speeding up and simplifying the process for resolving health care liability claims. Moreover, he argues that case law preceding the Legislature's enactment of section 74.052 recognized that ex parte contacts were permissible and there is no indication that the Legislature intended to change the status quo. Collins agrees with the Regians that the release...