State ex rel. Collins v. Roldan

• Decision Date: 09 June 2009
• Docket Number: No. WD 70350.,WD 70350.
• Citation: 289 S.W.3d 780
• Parties: STATE of Missouri ex rel. John W. COLLINS, M.D., Relator, v. Honorable Marco ROLDAN, Respondent.
• Court: Missouri Court of Appeals

289 S.W.3d 780

STATE of Missouri ex rel. John W. COLLINS, M.D., Relator, v. Honorable Marco ROLDAN, Respondent.

No. WD 70350.

Missouri Court of Appeals, Western District.

June 9, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2009.

Application for Transfer Denied September 1, 2009.

Charles H. Stitt, Kansas City, MO, Counsel for Relator.

David E. Larson, Liberty, MO, Counsel for Respondent.

Before JAMES EDWARD WELSH, P.J., LISA WHITE HARDWICK, and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Relator John W. Collins, M.D., asks us to issue a writ requiring the circuit court to compel the plaintiff in a medical malpractice action to execute the medical authorization form which Collins had tendered to plaintiff. We issued a preliminary writ of prohibition on December 11, 2008. Having concluded that decisions of the Missouri Supreme Court foreclose the relief Collins seeks, we now quash our preliminary writ.

Factual Background

On May 23, 2008, Carli Smith, by her mother (Sherri Smith) as next friend, filed a medical malpractice action against three doctors, including Relator Collins. Collins requested that Smith execute a medical authorization form he provided her. The authorization form provided Smith's consent to the disclosure to Smith's or Collins' counsel, or to any persons present during depositions in the case, of "[a]ny and all information, including records, concerning any medical care provided to, or medical treatment of, the person named above."

Smith's mother signed the medical authorization form for her minor daughter. However, Sherri Smith modified the authorization by specifying that the information subject to disclosure included only "[m]edical records and bills concerning any medical care provided to, or medical treatment of, the person named above." In addition, she added the following prominent qualification at the top of the authorization's first page:

THIS AUTHORIZATION DOES NOT EXTEND TO PRIVATE INTERVIEWS BETWEEN ANY HEALTH CARE PROVIDER LISTED BELOW (WITH THE EXCEPTION OF DR. COLLINS) AND REPRESENTATIVES OF THE LAW FIRM OF SHAFFER LOMBARDO SHURIN [COLLINS' LAWYERS]. ANY SUCH CONVERSATIONS WOULD BE CONTRARY TO THE EXPRESS WISHES OF SHERRI L. SMITH ON BEHALF OF CARLI A. SMITH.

Collins repeated his request that Smith execute the medical authorization form he had tendered, omitting this limiting language. Sherri Smith refused.

Collins filed a motion to compel requesting that the court order Smith to execute his form of medical authorization. The circuit court overruled Collins' motion. Collins then filed a petition for a writ of prohibition with this Court, requesting that we direct the circuit court to compel Smith to execute a medical authorization form without the limiting language. On December 11, 2008, this court issued a preliminary writ of prohibition ordering the circuit court to refrain from further action in the case until further order of this Court.

Analysis

A.

"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); accord, State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008).¹

B.

The focus of Collins' Petition, and his supporting briefing, is the propriety of the legend Sherri Smith added to the top of the medical authorization form Collins tendered to her, which admonished Smith's health-care providers that the authorization "does not extend to private interviews" with defense counsel, and that "[a]ny such conversations would be contrary to [the Smiths'] express wishes." It may well be that the admonition Sherri Smith added to the authorization form was inappropriate, and that an extraordinary writ would be the appropriate vehicle to require the trial court to order execution of an authorization without this legend.² We need not definitively resolve that issue, however, because we believe — for an entirely separate reason — that Collins was not entitled to have the court order the Smiths to sign his form of authorization.

In his briefing and argument, Collins has steadfastly maintained that, other than the addition of the legend at the top of the authorization form, Sherri Smith did not alter the form Collins tendered. Thus, in his opening brief Collins argues that "[i]t is undisputed in this case that the medical authorization that Relator is requesting is properly-tailored, given that the medical authorization that was previously signed [by Sherri Smith] describes the scope of the authorized disclosure in exactly the same terms as the medical authorization being requested by Relator."

Unfortunately, Collins' claim that Sherri Smith made no alteration to Collins' form of medical authorization, other than to add the admonition concerning ex parte communications, is inaccurate. To the contrary, the medical authorization form Sherri Smith executed on her daughter's behalf also alters the scope of the information subject to disclosure. The form Collins provided to the Smiths states that

The information to be disclosed is described as follows:

Any and all information, including records, concerning any medical care provided to, or medical treatment of, the person named above.

(Italics added.) The form Sherri Smith returned, however, narrowed the scope of "[t]he information to be disclosed," providing that disclosure was only authorized with respect to "[m]edical records and bills concerning any medical care provided to, or medical treatment of, the person named above." (Emphasis added.)

The difference between the items whose disclosure the Smiths were willing to authorize ("medical records and bills") versus the disclosure Collins sought (of "any and all information, including records"), is significant, and in our view dispositive of Collins' writ application.

The Smiths argue that "[t]here is no question that th[e] language [of Collins' form] is deliberately broad enough to encompass ex parte communications," and that "[t]he `clean' authorization advocated by [Collins] requires the [Smiths] to authorize ex parte meetings with treating physicians." We agree. Collins offers no other explanation for the different, and broader, wording of his authorization form. Moreover, the evident purpose of Collins' form — to expressly authorize ex parte communications — is confirmed by the extremely broad definition of "records" subject to disclosure even under the form of authorization Sherri Smith executed.³

Under the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 ("HIPAA"), and the Department of Health and Human Services' implementing regulations, it appears that Collins requires a medical authorization that is broad enough to comprehend ex parte communications with Smith's health-care providers in order for him to conduct such ex parte discussions pursuant to the authorization. Under HHS' Privacy Rule, protected "health information" includes "any information, whether oral or recorded in any form or medium. ..." 45 C.F.R. § 160.103. Under 45 C.F.R. § 164.502(a), "[a] covered entity may not use or disclose protected health information, except as permitted or required by" the Privacy Rule. The rule concerning disclosure pursuant to a medical authorization provides in relevant part:

Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.

45 C.F.R. § 164.508(a). Among the "core elements" of a valid HIPAA authorization, it must contain "[a] description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion." 45 C.F.R. § 164.508(c)(1)(i). Thus, to the extent a party seeks to rely on a medical authorization to support disclosure, the Privacy Rule would appear to require that the authorization be worded broadly enough to encompass ex parte interviews.⁴

To the extent Collins seeks a court order compelling Smith to execute a medical authorization broad enough to comprehend ex parte interviews, however, the relief he requests runs headlong into decisions of the Missouri Supreme Court concerning ex parte contacts with a litigant's treating physicians. While the Supreme Court has held that any privilege surrounding a plaintiff's medical information is waived "once there is an issue joined concerning the plaintiff's medical condition," and that this principle applies "to an ex parte conference that is within the scope of the waiver," the Court has also emphasized that "we will not require the plaintiff to execute medical authorizations authorizing his treating physican to engage in ex parte discussions." Brandt v. Med. Defense Assocs., 856 S.W.2d 667, 674 (Mo. banc 1993); accord Brandt v. Pelican, 856 S.W.2d 658, 662 (Mo. banc 1993) ("We reaffirm our holding in [State ex rel.] Woytus [v. Ryan, 776 S.W.2d 389 (Mo. banc 1989),] that we will not require the plaintiff to execute medical authorizations authorizing his treating physician to engage in ex parte discussions."); State ex rel. Norman v. Dalton, 872 S.W.2d 888 (Mo.App. E.D. 1994) ("in Brandt I, the Court ruled that a trial court cannot compel the plaintiff to authorize ex parte discussions with her physician").⁵

We recognize that the holding of the Brandt cases — that a court will not compel a patient to execute a medical authorization authorizing ex parte discussions — may be anachronistic in a post-HIPAA world, where disclosures of protected health information to third parties require relatively formal, explicit authorization.⁶...