State ex rel. Proctor v. Edith, No. WD 71326 (Mo. App. 11/10/2009)
| Decision Date | 10 November 2009 |
| Docket Number | No. WD 71326,WD 71326 |
| Parties | STATE OF MISSOURI ex rel. BOBBIE JEAN PROCTOR and VINCENT PROCTOR, Relators, v. THE HONORABLE EDITH L. MESSINA, CIRCUIT JUDGE, SIXTEENTH JUDICIAL CIRCUIT, IN JACKSON COUNTY, MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Before: James M. Smart, Jr., Presiding Judge, and James E. Welsh and Mark D. Pfeiffer, Judges
Bobbie Jean and Vincent Proctor have sought a writ from this court seeking 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 vs. 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 informal ex parte communications with attorneys for the defendant medical providers. We issued a preliminary writ on August 25, 2009, to determine the extent to which the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat.1936 (HIPAA), pre-empted 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. We now make our preliminary writ absolute.
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 parties and their attorneys if they have not received authorization from their patient to engage in such ex parte communications.1 The plaintiffs filed a motion seeking a writ of prohibition. On August 25, 2009, we issued a preliminary writ.
"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. W.D. 2009), this court noted that pursuant to the Supremacy Clause of the United States Constitution, HIPAA may pre-empt Missouri law on the issue of ex parte communications between an attorney and a treating physician. We did not examine or decide this issue because we decided the case on other grounds. Id. at 784 n.6. This application for writ of prohibition, however, puts the issue of whether or not HIPAA pre-empts Missouri law squarely before us. This 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 pre-empted and have no effect. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 798 (Mo. App. W.D. 2008). 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 pre-emption. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993). Thus, the United States Supreme Court has held that a federal law will pre-empt state law only when it is the clear and manifest purpose of Congress to do so. Id. To determine if Congress intended to pre-empt state law, the court must examine the text and structure of the federal law. Id.
There are three types of pre-emption: (1) express pre-emption, when a federal law expressly declares that it pre-empts state law, (2) implied field pre-emption, when ""the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,`" and (3) conflict pre-emption, when ""compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.`" In re Estate of Bruce, 260 S.W.3d 398, 400 (Mo. App. W.D. 2008) (quoting Jensen v. Mo. Dep't of Health & Senior Servs., 186 S.W.3d 857, 860 (Mo. App. W.D. 2006)).
Congress included an express pre-emption clause in HIPAA. See 42 U.S.C.A. § 1320d-7(a). Because HIPAA contains an express pre-emption clause, our task is to construe the plain language of the statute to determine the extent to which Congress intended for HIPAA to pre-empt state law. CSX Transp., 507 U.S. at 664.
HIPAA's pre-emption clause is contained in 42 U.S.C.A. § 1320d-7, which states that:
(1) General rule
Except as provided in paragraph (2), 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, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form.
(2) Exceptions
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 not supersede a contrary provision of State law, if the provision of State law—
(A) is a provision the Secretary determines—
(I) to prevent fraud and abuse;
(II) to ensure appropriate State regulation of insurance and health plans;
(III) for State reporting on health care delivery or costs; or
(IV) for other purposes; or
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 pre-emptive 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 pre-empt state law when, among other things, the state law is more stringent:
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. This general rule applies, except if one or more of the following conditions is met:
. . . . (b) The provision of State law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under subpart E of part 164 of this subchapter.
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). Congress used the indefinite article "a" to modify the term "provision." Because Congress did not identify which provision of HIPAA would pre-empt state law, it is apparent that Congress is using the term "a" to mean that any provision of HIPAA could supersede any provision of state law. See BLACK's LAW DICTIONARY 1 (5th ed. 1979) (mentioning that the indefinite article "a" "is not necessarily a singular term" and "is often used in the sense of "any`"); Lewis v. Spies, 350 N.Y.S.2d 14, 17 (N.Y. App. Div. 1973). Congress, however, used the singular noun "provision." By using the singular noun "provision," it is clear that Congress envisioned a scenario where a single provision of HIPAA could replace a single provision of state law but the rest of the state's law would still be enforceable.
Our interpretation is consistent with the Secretary's interpretation of the rules and regulations. The Secretary has stated that, to engage in a pre-emption analysis, the 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...
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