State Ex Rel. Bobbie Jean Proctor v. The Honorable Edith L. Messina
| Decision Date | 31 August 2010 |
| Docket Number | No. SC 90610.,SC 90610. |
| Parties | STATE ex rel. Bobbie Jean PROCTOR and Vincent Proctor, Relators,v.The Honorable Edith L. MESSINA, Circuit Judge, Sixteenth Judicial Circuit, Jackson County, Missouri, Respondent. |
| Court | Missouri Supreme Court |
Hans H. van Zanten and Michael T. Yonke, Yonke & Pottenger LLC, Kansas City, for relators.
Sean T. McGrevey and Scott M. Adam, Adam & McDonald PA, and Jana V. Richards and Maureen M. Brady, Sanders, Conkright & Warren LLP, Overland Park, Kansas City, for Health Care defendants/respondents.
Harvey M. Tettlebaum and Robert L. Hess II, Husch Blackwell LLP, Jefferson City, for the American College of Radiology, Missouri Radiological Society, Missouri Dental Association, Missouri Healthcare Association and Delmar Gardens North Operating LLC, which filed briefs as friends of the Court.
Robert W. Cotter and Matthew W. Geary, Dysart, Taylor, Lay, Cotter & McMonigle PC, Kansas City, for the Missouri Organization of Defense Lawyers, which filed a brief as a friend of the Court.
R. Kent Sellers, Lathrop & Gage LLP, Kansas City, for the Missouri Hospital Association, which filed a brief as a friend of the Court.
Leland F. Dempsey and Ashley F. Baird, Dempsey & Kingsland PC, Kansas City, for the Missouri Association of Trial Attorneys, which filed a brief as a friend of the Court.
Bobbie Jean and Vincent Proctor seek a writ to prohibit the Circuit Court of Jackson County (trial court) from enforcing its purported discovery order in the pending civil case of Bobbie Jean Proctor & Vincent Proctor v. Kansas City Heart Group, P.C., Timothy L. Blackburn, M.D., & St. Joseph Medical Center, Case No. 0816-CV24576. In the case below, the trial court issued a purported formal discovery order advising non-parties that the trial court believed it was permissible for these non-party medical providers to engage in informalex parte communications with attorneys for the defendant in the underlying cause. The court of appeals issued a preliminary writ to examine the extent to which the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat.1936 (HIPAA), preempted Missouri law on the issue of ex parte communications in informal discovery and also to re-examine the State of Missouri's law on this topic. By opinion, the court of appeals made the preliminary writ absolute, and this Court granted transfer.1
Bobbie Jean and Vincent Proctor filed a petition for damages for personal injuries against Kansas City Heart Group, P.C., Timothy L. Blackburn, M.D., and St. Joseph Medical Center. In their petition, the plaintiffs alleged that Bobbie Jean suffered damages arising out of the defendants' medical negligence during her surgery in March 2004.
On January 28, 2009, Blackburn and Kansas City Heart Group, P.C., filed a motion in which they sought a formal order from the court specifically authorizing informal ex parte communications with Bobbie Jean's treating physicians and other health care providers. On February 24, 2009, St. Joseph Medical Center filed a similar motion. The trial court heard oral arguments on June 11, 2009. On July 17, 2009, the trial court issued its purported formal order sustaining the motions and “authorized” non-party medical providers of Bobbie Jean Proctor to engage in informal ex parte communications with attorneys representing defendant medical providers, although the purported “order” specifically advises any of plaintiffs' medical providers presented with the purported “order” that they are free to ignore the purported “order” as it relates to ex parte communications with the parties and their attorneys if they have not received authorization from their patient to engage in such ex parte communications.2 The order did not limit the scope of disclosures to matters that would be calculated to lead to admissible evidence. The plaintiffs filed a motion seeking a writ of prohibition.
“Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.” State ex rel. Marianist Province of the U.S. v. Ross, 258 S.W.3d 809, 810 (Mo. banc 2008).
In State ex. rel Collins v. Roldan, 289 S.W.3d 780, 783 (Mo.App.2009), the court noted that pursuant to the Supremacy Clause of the United States Constitution, HIPAA may preempt Missouri law on the issue of ex parte communications between an attorney and a treating physician. The court did not examine or decide the issue because the case was decided on other grounds. Id. at 784 n. 6. The issue of whether or not HIPAA preempts Missouri law is an issue of first impression in Missouri courts.
The Supremacy Clause of the United States Constitution states that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. Under this clause, state laws that conflict with federal laws are preempted and have no effect. Connelly v. Iolab Corp., 927 S.W.2d 848, 851 (Mo. banc 1996) (internal citations omitted). The United States Supreme Court has cautioned that in the interest of preventing federal encroachment on the state's authority, a court interpreting a federal statute pertaining to areas traditionally controlled by state law should be reluctant to find preemption. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Thus, the United States Supreme Court has held that a federal law will preempt state law only when it is the clear and manifest purpose of Congress to do so. Id. To determine if Congress intended to preempt state law, the court must examine the text and structure of the federal law. Id.
Congress included an express preemption clause in HIPAA. See 42 U.S.C.A. § 1320d-7(a). Because HIPAA contains an express preemption clause, this Court's task is to construe the plain language of the statute to determine the extent to which Congress intended for HIPAA to preempt state law. CSX Transp., 507 U.S. at 664, 113 S.Ct. 1732.
HIPAA's preemption clause is contained in 42 U.S.C.A. § 1320d-7, which states:
Pursuant to the authority granted to it under HIPAA, 42 U.S.C.A. § 1320d-2(d)(2)(A), the Secretary of the Department of Health and Human Services (the Secretary) promulgated a federal regulation on HIPAA's preemptive effect. This regulation is similar to HIPAA's statutory language and states that “ [a] standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” 45 C.F.R. § 160.203 (emphasis added). The regulations define “State law” as “a constitution, statute, regulation, rule, common law, or other State action having the force and effect of law.” 45 C.F.R. § 160.202. 45 C.F.R. § 160.203 also provides exceptions to this general rule and states that HIPAA will not preempt state law when, among other things, the state law is more stringent:
HIPAA's language states that “ a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-1 through 1320d-3 of this title, shall supersede any contrary provision of State law[.]” 42 U.S.C.A. § 1320d-7(a)(1). The Secretary has stated that, to engage in a preemption analysis, a court must first isolate a specific provision of HIPAA and compare that provision with its analogous state provision:
The initial question that arises in the preemption analysis is, what does one compare? The statute directs this analysis by requiring the comparison of a “provision of State law [that] imposes requirements, standards, or implementation[ ] specifications” with “the requirements, standards, or implementation specifications imposed under” the federal regulation. The statute thus appears to contemplate that what will be compared are the State and federal requirements that are analogous, i.e., that address the same subject matter.
Department of Human Health and Services, Standards for Privacy of Individually Identifiable Health Information, 64 Fed.Reg. 59918, 59995 (Nov. 3, 1999). The Secretary also recognizes that, even if HIPAA preempts one provision of state law, the rest of the state's laws relating to the privacy of an individual's health...
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