*1 HOLMES, Administrator Margie L. Lee of Teresa
of the Estate
Elam, Petitioner, Brett
Honorable Rebecca
NIGHTINGALE, District Respondent.
Judge, 103,762.
No. of Oklahoma.
Supreme Court
March May
As Corrected *2 Hickman, Frasier,
Steven R. & Frаsier Hickman, LLP, Tulsa, OK, for Petitioner. Callahan, Weeks, L. Karen Leslie C. Beth Reynolds, Todd, Tulsa, OK, S. Rodolf & Interest, Party Real St. John Medical Center, Inc.
Jeffrey Glendening, A. Higgins, James A. Goodnight, Tara P. Glendening Law Firm, P.L.L.C., Tulsa, OK, Party for Real Interest, Tulsa, Interim Healthcare of Inc. WATT, J. jurisdiction original We assume published
decide an issue not in a addressed opinion since the enactment in. 1996 of the Portability Health Insurance and Accounta (HIPAA),2 bility Act 42 U.S.C. et. seq.3 whether, The initial issue order, unpublished February 1. In an unpublished appears filed on The vote on the as: we determined that disclosure of Watt, C.J., Winchester, V.C.J., Lavender, Har- pursuant health care information to court order grave, Kauger, Edmondson, Colbert, JJ., Taylor, permissible J., Opala, was under HIPAA. The order concur. concurs in result. 102,964 Shaffer, # v. Honorable Ronald Huffman Although provides pertinent part: we have chosen to refer to act "HIPAA," its shorthand from as we note that requiring "... An order the real in inter- legal research reveals that the Act has been re- est to execute an authorization for the release ferred to other courts as "HIPPA" and or disclosure of medical 'information'-oral or that, parlance, "HIPA" and in common the most Seaberg, written-would not contravene so prevalent appears reference to be to "HIPPA"'- long voluntary, as informal ex communi- especially rights' in the examination of allowed, merely compelled cation is not forms which also reveal same inconsisten- required. Entities or health care cies. subject to the restrictions avert limiting violation the Act statements, responses, appears argue original jurisdic or other forms of disclosure to indi- Interim vidually idеntifiable health information encom- tion should be assumed when an abuse passed requiring within the waiver...." discretion has occurred this Court's safeguards procedural clearly placed mental individual has when an suit,4 by filing clearly anticipates HIPAA which in issue physical conditions mandating, allowing, but health information a court disclosures provid 2) order;5 with health oral communications to a court extant federal 3) confidentiality provi pre-HI- jurisprudence; this Court's violates HIPAA's ers *3 sions. in v. PAA decisions Johnson District Court 47, County, 1987 OK 738 P.2d Oklahoma [ permitting, 2 hold that a court order We Lockard, 40, Seaberg 151 and v. 1990 800 OK mandating, oral communication rather than recognizing that P.2d 230 where there has care entered as re with health physician/patient privi been waiver of the clearly placing mental or of an individual sult 19(B)(1) 76,7 judi § lege pursuant title by filing in issue suit does physical conditions authority may not utilized to facilitate cial confidentiality re contravene HIPAA's impede or communications with the supported is quirements. determination Our 1) 164.512(e)(1) governing § by: 45 CFR. providers. health care substantially statutory language through a writ. The similar issuance of intervention jurispru with our assertion is not consistent 40, considered in v. 1990 OK 230 and v. District Court 800 P.2d Stewart, Petroleum v. 2003 dence. Ward Corp. for certiorari 11, [Petition 64 P.3d 1113 OK 47, 151, OK Oklahoma 1987 original petition prohibition; recast as for writ of reference is to the current statute. assumed; denied.]; jurisdiction Grimes v. writ 49 164.512(e)(1) 47, 2002 OK P.3d 719 Oklahoma City, providing perti- § City 5. 45 C.F.R. assumed; declaratory [Original jurisdiction relief part: nent denied; prohibition de writs of mandamus and judicial Disclosures for and ad- "Standard. Miller, 49, Co. v. 2001 OK 32 nied.]; World Pub. proceedings. ministrative Furthermore, we [Writ denied.]. P.3d 829 may (1) A covered original jurisdiction to address issues in Permitted disclosures. assume entity protected health disclose primarily those of matters which are any judicial or administrative the course impression. first v. District Court of Heffron proceeding: ¶ 4, 77 P.3d 75, Oklahoma County, (i) response In to an order of a court or ad- Hatch, 101, ¶ 1, St. Clair v. 62 1069; P.3d 382. cov- tribunal, ministrative provided entity ered discloses (B)(1) providing: § Supp.2005 4. Title76 0.S. 19 by expressly such order personal involving "In cases a claim for [Emphasis provided.] ..." healing against any practitioner or death nursing facility hospital, arts or a licensed or a Provost, Bayne F.Supp.2d 240 359 nursing Section or home licensed (N.D.N.Y.2005) [Allowing parte communica Statutes 1-1903 of Title 63 of care when "court tions with health care, patient any person arising where out of present.]. exception See tо HIPAA was order' physical placed or mental condition of has Litigation, 230 re Vioxx Products also, Liability person by through person deceased or or (E.D.La.2005), on other F.R.D. 477 modified claims, person rightfully person whom the (E.D.La.2005) grounds, [Just WL 2005 2036797 any privilege granted to waive shall be deemed relationship option protect was to in the case concerning any made law communication by restricting de a doctor and between physician to a or health conducting ex communica fendants from any physical mental condition reference to or treating physicians plaintiffs' but al tions with physician any knowledge obtained engage lowing plaintiffs' counsel provider by personal health care examination have not been with those doctors who interviews that, patient; provided bеfore com- defendants.]. see, as But Crenshaw named record, or tes- munication, medical or hospital F.Supp.2d 1028 Ins.Co.318 MONYLife any proceed- timony is admitted in evidence (S.D.Cal.2004) [Providing HIPAA does not ing, and relevant to an it must be material pro parte contacts with healthcare authorize ex therein, existing according to rules of issue Zuckerman, 307 viders.]; Law v. F.Supp.2d Psychological, psychiatric, mental evidence. (D.Md.2004) [Although defense counsel's treatment records health and substance abuse HIPAA, physician pre-trial violated contacts with psychological, psychiat- from and information remedy precluding counsel from hav defense abuse treat- ric, mental health substance ing any parte communications with further ex may only pro- practitioners be obtained ment also, physician See discus warranted.]. was not 1-109 of vided the of Section 13, infra. additional case law in footnote sion of Oklahoma Statutes are met." Title 43A of the privilege exists here as No issue of waiver of the Supp.2005 su- see 7. Title 76 O.S. the treatment received Elam is the basis pra. provision negligence claim. Because the waiver favorable resolution of the issue an automobile accident. Elam died on Feb- Our 283,2006, requires ruary regarding ex communications while under the care of Inter- im Healthcare of Tulsa and St. John Health compli- to examine us issued System, April Inc. Supp.2005 ance with 76 0.8. 19 and 12 0.5. On Holmes filed 2503(D)(8).8 Furthermore, asserting Supp.2004 we suit on behalf of Elam's estate negligence against adequate- must determine whether the order claims of medical week, ly they may providers. following advises nоt be compelled petition participate identifying oral ex com- amended was filed St. Center, Medical Inc. munications. John as defendant and provider. Although order refers the statu- tory requirements of 76 0.8. Following Holmes' failure to execute Supp.2004§ 0.8. we hold allegedly HIPAA-compliantmedical authori- *4 language overly that its that it broad and John, provided by hospital zations the St. statutorily meeting falls short of the filed a motion to dismiss or in the alternative clearly any standards. The statutes limit application protected for release of health materials to information discoverable rele- May information on Interim filed vant to the claims or defenses asserted in the protected notification of intent to obtain malpractice action or to the or death hеalth care information on June Furthermore, litigation. in the order does signed an order on that date and filed on clearly physician may not advise that no 5, 2006, July trial the court ordered the compelled in participate commu- release of Elam's health care infor- Therefore, jurisdiction nications. is as- 19(B), "pursuant § mation to 76 0.8. 0.8. sumed, granted the writ is and the cause is 2508(D)(8) 164.512(0)(10)() § § and 45 C.F.R. entry remanded for of an order consistent Portability of the Health Insurance and Ac- opinion. with this countability Act" pa- which authorized the providers "orally tient's health care com-
FACTS
'protected
municate
and to discuss
14, 2005,
T5
they
On October
Theresa Lee
if
health information'
choose with the
(Elam/patient/decedent)
injured
Elam
parties' attorneys
was
in
in
of record
this action."
2503(D)(3)
providing
§
8. Title
physician
12 0.S.
munication mаde to a
or other
pertinent part:
health care
with reference to the
physical
any knowledge
condition or
obtained
privilege
''The
under this Code as to a commu-
by
physician
provider by
or health care
physical,
nication relevant
mental or
personal
of
examination
Teresa Lee Elam.
patient
any pro-
emotional
of the
condition
19(B),
Accordingly,
to 76 0.S.
ceeding
upon
pursuant
in which the
relies
O.S.
CFR.
patient's
condition as an element
of
claim
164.512(e)(1)(i)
of
the Health Insurance
or,
death,
patient's
any
or defense
after the
("HIPAA"),
Portability
Accountability
Act
proceeding
any party
upon
in which
relies
ORDERED,
hereby
the Court FINDS and it is
party's
condition as an element of the
claim or
ADJUDGED,
by
AND DECREED
the Court as
qualified
defense is
to the extent that an ad-
follows:
proceeding may
verse
in the
obtain rele-
Elam,
providers
1. Health care
Teresa
Lee
regarding
vant
the condition
(ie.,
entities'),
'covered
are
to dis-
statutory
..."
(P.H.L)
close
health
information'
'protected
order,
July
9. The trial court's
filed on
which includes documentation related to hos-
providing
pertinent part:
pitalizations
including but not
limited to all
examinations,
treatment, radiographic imaging
"... ORDER AUTHORIZING RELEASE OF
films,
records,
emergency
outpatient
room
rec-
PROTECTED HEALTH INFORMATION
This matter comes before
de-
this
billing
ords,
charts,
statements,
or re-
hospital
any diagnostic study
any
sults of
on
27th
June, 2006,
termination
on
day
Defendant,
pertinent
the Motion of
St. John Medical
materials
to Ms.
medical con-
Elam's
dition;
Directing
Center,
Inc.,
for Order
Release
Having
providers
Protected Health Information.
re-
2. Health care
of Teresa Lеe Elam
trial,
pleadings
parties,
testify
jury
deposi-
viewed the
the Court
are authorized to
placed
physical
finds that the
Plaintiff has
tions,
and before this Court about
any
any
condition of Teresa Lee Elam in issue
contained in
record of
filing
litigation
providers
of this
and has waived
care and treatment of Teresa Lee
privilege granted by
concerning any
law
com-
Elam;
of such an order-not
as to
to assume
issuance
application
filed an
17 Holmes
in all
of whether
the order
issued conforms
petition for writ
original jurisdiction and
September
2006. The
respects
opinions.
on
prohibition
these
with
responses
their
on
care
filed
health
a)
regulations
governing the
Federal
September 29th.
procedural
and safe-
clearly
guards imposed
an-
PERMITTING,
T8 A COURT ORDER
ticipate
disclosures
MANDATING,
RATHER
THAN
to а
WITH
COMMUNICATION
ORAL
court order.
EN-
HEALTH CARE PROVIDERS
INDI-
A
OF AN
TERED AS RESULT
Congress
T11
enacted HIPAA in 1996 en-
MEN-
PLACING
VIDUAL CLEARLY
trusting
Secretary
Department
TAL OR PHYSICAL CONDITIONS
(Secretary)
Human
Health and
Services
BY FILING
DOES
IN ISSUE
SUIT
the creation of national standards
the task of
HIPAA'S CON-
NOT CONTRAVENE
confidentiality
integrity and
to ensure the
FIDENTIALITY
individually
health information.11
identifiable
REQUIREMENTS.
Thereafter,
Secretary promulgated 45
the trial
argues
19 Holmes
(e)
reg-
164.512. Subsection
CFR.
allowing parte oral communi
court's order
specifically
ulation
addresses disclosures for
cations with Elam's health
*5
pro-
judicial
procedures
and administrative
confidentiality
require
violates HIPAA's
viding two situations in which covered enti-
Nevertheless,
recognizes
ments.
she
may
protected
informa-
ties
release
health
protected
the disclosure of
HIPAA allows
tion:
pursuant
health information
to court order.10
(1)
A
"...
Permitted disclosures.
covered
Essentially,
only an
Hоlmes contends that
entity may
protected
infor-
disclose
health
protected
compelling
order
the release
any judicial or
mation in the course of
information, rather than an order
proceeding:
administrative
release,
allowing
satisfy
will
such
()
response
an
a
or
In
to
order of
court
contrast,
requirements.
In
the health care
tribunal, provided that
administrative
HI-
provider asserts that the order issued is
only
entity
discloses
covered
with this
compliant
PAA
and conforms
expressly authorized
health information
holdings Seaberg
in
v.
Court's
order; or
District
pursuant filing a lawsuit but Mary- 1 15 The Law court determined that the disclosures be allowed whеre court law, prohibit land which did not Here, provides. order so the first condition lawyer and the communications between clearly is met-the court order allows such treating physician party, of an adverse was disclosures. Therefore, stringent not as as HIPAA. preempt Mary- federal law was found to and the medical The defendant Nevertheless, land statute. the federal court that, provider argue essentially long as as recognized that disclosures should be allowed signed by judge, there is there is compliance when strict with HIPAA oc- seope protect limit on of disclosure of Finally, curred. the Law court determined ed health information under section or 1) that: had defense counsel exercised rea- that, They argue HI- HIPAA. because the diligence attempting guarantee sonаble regulations provide PAA "in physician contacts did not violate HI- response to an order of a court" under see 2) PAA; Secretary-promulgated rules re- 164.512(e)(1)(), tion no restriction on the ability strict of health care applies. argument, of disclosure That divulge patient medical records without ex- however, ignores the rest of the sentence press consent of the to a requires entity which the "covered dis [to 3) order; allowing court a court order health information close] speak either with the expressly such order."12 physician about issues set forth in the Clearly seope permitted a limitation on the party's effectively records remed- imposed. disclosure is The of that source any potential ied HIPAA violation. privacy requirements limitation is the erfu- 164.512(e)(1)Gi-vi). priva mеrated at Crenshaw, 16 In the court held that de- cy requirements apply of HIPAA whether *6 parte fense counsel's ex communications with not there is court authorization for the disclo opposing party's personal physicians fell protected sure of information. beyond requirement HIPAA's that confiden- words, prohibit HIPAA does not ex tial pursu- medical information be disclosed parte through communication a HIPAA-com- order, subpoena discovery ant to a court pliant holding court authorization. This is request. The federal court's determination supported by jurisprudence. finding rested on a that all such disclosures accompanied by must be assurances to the b) Although ju- 113 there is little federal provider healthcare that reasonable efforts risprudence parte on issue of ex party had been made to secure a HIPAA, communications under qualified protective pro- order. Because no existing supports finding issued, case law a tective order had the Crenshaw Court such contact should be allowed require- that HIPAA's disclosure determined when, here, as a court order exists ments were violated.
allowing the communication.
T17 Both Law and Crenshaw were ana
14
Provost,
Holmes relies on two cases-Law v.
lyzed
in Bayne
F.Supp.2d
359
Zuckerman,
(D.Md.2004)
(N.D.N.Y.2005).
F.Supp.2d
307
705
239
The federal court
Co.,
import
and Crenshaw v. MONY
Ins.
318
determined that
the true
of the two
Life
(S.D.Cal.2004)-for
bright
F.Supp.2d
prop
1015
causes was that
there
is no
line
barring
parte
parte
prohibited
osition that ex
contacts are
HIPAA rule
all ex
discus
Rather,
ap
under HIPPA and that
sions.
contacts are
may only
propriate
protections
required by
be released
once the
provision permits
ty
12. The
text
entire
disclo-
discloses
health information
any judicial proceeding:
See,
sures in the
expressly
course of
such order."
"(1)
response
164.512(e)(1),
to an order of a court or admin-
supra.
C.F.R.
tribunal,
istrative
the covered enti-
provided
New York Court
compel discovery by
are met.13 The
ex
communica-
in which oral
recognized three
instances
tion.
1) where,
appropriate:
were
communications
Johnson,
Following
teachings of
accompa
here,
requests
are
as
opinion
Seaberg
the memorandum
v. Lock
2)
order;
a medical
nied
a court
when
ard,
through communications munications. pre-HIPAA deter- conforms with the
minations
v. Lockard
Johnson
v. District Court of Okla-
121 THE
OV-
ORDER PRESENTED IS
County
holding
that where
homa
ERLY
IT
BROAD.
DOES NOT CON-
physi-
there has been a waiver of the
RE-
FORM WITH THE STATUTORY
cian/рatient
privilege pursuant
to 76
QUIREMENTS
Supp.2005
76OF
0.8.
19, judicial authority
Supp.2005 §
0.8.
AND 12%
O.8.
be utilized to facilitate or to
2503(D)(3)
IT ADE-
NOR DOES
impede
communications with
QUATELY ADVISE PHYSICIANS
providers.
health care
MAY
BE
THAT THEY
NOT
COM-
{19
analysis here
limited to the
Our
PELLED
IN EX
TO PARTICIPATE
communications
issue of whether
PARTE COMMUNICATIONS.
jurispru-
under
are
allowed
agree
we
with the health care
While
Okla-
dence.
District
permitting,
that a court order
rath
' 26 We
on
un-
consider the limitations
128 The
order is deficient
§
Supp.2005
der both 76 O.S.
1919 and 12
ex
communications under
the same
2503(D)(8).20
anticipate
§
Supp.2004
places
causes which
such disclosures. O.S.
It
Court,
¶ 4,
47,
Johnson v.
limit on
District
of the
19,
4,
2503(D)(E),
Supp.2004
Supp.2005
§
§
16. Title 12 O.S.
see
19. Title 76 O.S.
see note
supra.
8,
note
supra.
§
17.
45 C.F.R.
note
164.512,
5,
see
supra.
Supp.2004 §
20. Title 12 O.S.
see
8,
supra.
2006,
18. The trial
order,
5,
court's
filed on July
9,
see note
supra.
tain procedures. One
to be disclosed.
It is not confined to "materi-
by
measure
which
any
al relevant
to
malpractice
issue
such
may
sought
is
Johnson,
required by
action" as
nor is it
to a court order specifying the
substance
injury
"restricted to the
litiga-
or death in
the information to be released.23 We hold
required by Seaberg. Furthermore,
tion" as
order,
that an
entered as a result of an
it
Higginbotham,
is too brоad under
allowing
placing
individual
physical
mental or
condi
the health care
"any
access
ree-
tions in
filing
issue
containing
suit and
any
ord of
care and
clearly permissive language in relation to ex
treatment
of Teresa Lee Elam"21 rather
parte communications, does not contravene
limiting
than
it to the
alleged
condition
confidentiality
HIPAA's
requirements.24
patient's
have
caused the
and result-
The determination is
proce
consistent with:
ing death.
requirements
dural
safeguards
HIPAA;25
extant
jurisprudence;
b)
allowing
An
parte physi-
order
pre-HIPAA
this Court's
determinations
clearly
cian communications
should
in Johnson v. District Court
provide
physician may
that no
be com-
47,
CONCLUSION jurisdiction, grant sume the writ and remand 131 HIPAA expressly does not bar ex entry cause for of an order consistent parte communications but opinion.28 cer- with this require does order, 21. The trial July court's filed on 23. Smith v. American Home Products Corp., see note (2003). supra. 855 A.2d N.J.Super. 1329d-6(b) provides: Title 42 U.S.C. 24. The trial order, court's filed on July "Penalties see note 9, supra. person (a) A described in subsection of this section shall-- 164.512(e)(1), 25. 45 CFR. suрra. see note (1) be fined not more $50,000, than impris- oned not more than 1 or both; year, 19(B)(1), Title 75 O.S. see note (2) if the offense is pre- committed under false 4, supra. tenses, be fined not more $100,000, than im- *9 prisoned both; years, not more than 5 and 27. Title 12 (3) O.S. see the if offense is committed with intent to 8, note supra. sell, transfer, or use identifiable individually health information advantage, for commercial personal harm, gain, reaching or malicious today, be fined not 28. In our decision we consider more than $250,000, not more imprisoned Nevertheless, our precedent. determina- years, than 10 or both." squarely tion rests within Oklahoma law which 1048 {4 ASSUMED; parte communica- ex rules for Ground JURISDICTION ORIGINAL unprivileged of and disclosures about tions GRANTED; REMANDED. CAUSE
WRIT Appel- long overdue. are health litigation- for this crafting legal of norms late CONCUR, ALL JUSTICES of pattern follow the аctivity must related and health Litigants jurisprudence. WINCHESTER, OPALA,J., whom with the trial tender to should care TAYLOR, J., concurring join, C.J., and the con- appropriate to specific issues court health protects one's privilege T1 A norm- Appellate courts' it. troversy before may be being disclosed from with primarily itself concern making will Persons of law. by operation or lost waived to be established conformity ground rules of physical their in issue places lawsuit whose must process that of due requirements to the pro tanto the relinquish condition or mental as the adversary parties as well the assure privilege As the of nondisclosure. privilege optimum fundamen- health-care law-imposed and itself, its waiver is so also ab- Judges shall fairness. protection and tal neither For its effectiveness self-executing.1 the advice to giving off-the-record stain from judicial antecedent depends on an nor requires short, non-party actors. parties or dec laration.2 about and disclosures parte communications shall be health unprivileged long- {2 privilege is believed the When regulation whenever subjected to trial-court with a obtain, parte communications er to judicial at- properly called are problems party will opposing provider of tention. compelled. nor judicially impeded be neither today but or authorizes correctly that allows A court order concludes T5 The court with require oral communications (1) not not incon- jurisprudence does is Oklahoma providers is party's opposite procedural "the sistent must be its terms impermissible, but not HIPAA"-the safeguards and or emotional mental patient's to a confined Portability Accounta- Insurance Health (2) 1820(d) to the claims relevant Act, seq; condition et bility 42 U.S.C. the action. issue in are at defenses which it does not restrict because is deficient patient's to the to be obtained the disclosure cast into judiciary to be Allowing the 13 relevant condition that is emotional mental or volun process of role in the extensive more are at issue defenses which claims or to in for access negotiations tary (8) action; order does in the damaging to its indeed formation would informal clearly advise absolute posture of constitution-commanded may not be exchanges health information neutrality. are clear We detachment compelled. judges from protect ly duty-bound to petitionеr's granting concur T6 I henee both grave threat exposure to a brink that should prohibition for a writ quest reality of their image as to the as well their order. presently cure the defects nego voluntary impartiality. If law-exacted no-longer-protected securing the tiations for COLBERT, J., concurring. fail, seeking the disclosure should the effect Today examines I 1 this Court relegated is eo instante release information's in- practice pre-discovery HIPAA on discovery.3 process of by law to the physi- waives the filing personal claim adequate inde- fide, separate, provides bona concern- Michigan cian-patient privilege as to information v. pendent grounds our decision. 3476, 3469, history relevant 77 ing health and Long, 103 S.Ct. 463 U.S. issue"). placed (1983). plaintiff at has which 1201 matters L.Ed.2d 40, 800 P.2d OK v. 1. Lockard, supra note 1. Seaberg v. 2. 9,OK 480 P.2d Lane, Robinson 231-232; Brandt v. Medical see also 620, 621-22, Defense 19(B)(1); Seaberg v. Lock Supp 76 O.S. (Mo.1993); 669-670 SW.2d Associates, v. District 1; ard, supra N.W.2d 244 Neb. Clark, Vredeveld ("Courts (1993) generally OK held have *10 formal ex communication between a would a provider medical seek a court order provider and defense coun- to authorize the release of information that is malpractice sel a medical action. I concur available informally 19(B) under section in the Court's determination that through HIPAA communication? The chal- prohibit does not court lenged authorization of that order would not have been practice provided that the court order limits to the trial court but for the enactment of the seope the of such pursuant to see- HIPAA regulations limiting the disclosure of 19(B) tion and section and further protected health information. complies
that it privacy with the limitations imposed by HIPAA. I separately write EFFECT OF HIPAA ON EX PARTE explain further the historical jurispru- and COMMUNICATIONS dential today's context of decision. to, 15 HIPAA was enacted among 19(B)
SECTION AND PRE- things, integrity "ensure the and confidential- ity DECISIONS [patient] information" 42 U.S.C. 1320d-2(d)(2)(A). The Act authorizes the privacy Before the HIPAA regulations Department of Health and Human Services were enacted this unquestion- regulations enact goal. further that ably permitted practice of ex com- privacy effective, rules became in- 19(B). munication to section Two cluding litigation provision found at see- decisions described the method and cireum- 164.512(e). tion time, At that Oklahoma was seope scribed the practice: of that one of only fifteen states permitted Court, v. District praсtice of informal ex communication Seaberg and patient's between provider op- and P.2d 230. posing malpractice counsel in a action. Dan- T3 Johnson describe an infor- Roche, Ask, iel M. Don't Don't Tell: HI- mal method pre-discovery. Those deci- PAA's on Discovery in Effect Informal 19(B) sions view section as a self-executing Liability Products Injury Personal waiver of privilege limited to the issues and Cases, 2006 BY.U.L.Rev. 1088-84. malpractice involved in the action. If Twenty-four prohibited states practice. this Court were to challenged validate the Litigation Id. began immediately in state order, it dramatically expand would scope and federal courts concerning the effect of 19(B)'s of section self-executing waiver of HIPAA in minority per- states that privilege to all health information. practice. mitted the Such an unbounded order would result Oklahoma, 16 In the Oklahoma State unlimited ex communication court Medical Association and the Oklahoma Hos- contrary to the scope limitations on the pital joint Association made a 19(B) request to the of the section privilege waiver of artic- Secretary of Department of Health and ulated in Johnson Seaberg. The fact Human exception Services for an the waiver is self-executing does not preemptive 19(B). effect of HIPAA on section justify a determination its is un- Secretary delegated The the decision on such limited. requests to the Rights. Office Civil On 1 4 It important to note that the medical June the Director of that office sought challenged response issued his request. after Plaintiff refused to execute an unlimit- ed authorizatiоn that did not comply with response began by quoting the HIPAA. appears The order designed exemption to as- request which noted that section 19(B) sure and other provid- health care permits defense counsel in a medical they ers will not violate HIPAA malpractice gather action "to medical records matter degree the method or of communica- willing conference with and/or tion scope or the necessity without of a patient they disclose to authorization, counsel. For subpoena, or court order." Af- reason, what other while in pre-discovery, analyzing HIPAA, ter section *11 1050 Each communication. permit pre- which was no there
response concluded that HI- held has either can decisions entities of these "covered because emption issue without 45 communication prohibits and PAA [section] both with comply limited the 164.512(e)(1)Gi)-(vi). has It is neither authorization1 patient CFR. by applying to com- the HIPAA a health disclosure for of impossible statutes, complying with to the re- nor is in addition requirements ply privacy with both the ac- to time an obstacle "[In statute law.2 the Oklahoma of state quirements purposes of or execution court in the complishment passage, no HIPAA's following Thus, exemp- HIPAA." objectives of parte inter- and held that ex has United States preemption was required because are treating physician tion was a views with not an issue. formal restric- sort of absent some permitted Thus, today's Roche, at 1091. supra, tion." the answer was not this Apparently, T8 limitations recognition associations hospital and the medical main- law is well within and fedеral state precisely told Having been wanted to hear. concerning post-HIPAA decisions of parte com- stream limiting ex for communication. state comply with in order munication law, and defense medical "authoriza- request court began to counsel TACTICAL OF UNFAIR PREVENTION attempt to cireumvent apparent in an tions" ADVANTAGE attempts have These requirements. those challenged order Proponents of the 110 as dem- varying degrees of success met with scope of completely the expand sought Ap- in the included orders onstrated in- protected health of permissible disclosure to Assume Application Plaintiffs pendix to have challenged order would The formation. of Petition for Writ Original Jurisdiction ac- malpractice in a counsel allowed defense judges have Some Prohibition. psychological all medical to obtain tion permitted the disclosure imposed limits on infor- patient, a even authori- communication mal- nothing to do with that had mation signature their zations the irrelevant The fact that action. practice have not. some trial at may not be admitted argument rejects the Today this Court T9 advan- unfair tactical remedy the would not by judge need signed an authorization would to the information tage that access require- privacy the HIPAA comply with to defense counsel. provide 164.512(6)(1)Gi- at section ments enumerated validate a broad were to 11 If this Court vi). argument is entire- rejection challenged in this like the one general the state with the decisions ly consistent change in the action, effect a radical it would examined that have courts аnd federal informa- protected health in which manner state law provisions of HIPAA on effect state(s) Co., treating 318 Ins. v. MONY "clearly views with 1. Crenshaw Life (S.D.Cal.2004)("Only for F.Supp.2d 1029 by the Or covered medical what satisfy re appear allowing any to as discovery requests mal ders thus 164.512(e)."); v. Zucker Law compliance with quirements man, they are in themselves that sure (D.Md.2004) F.Supp.2d Prods. requirements"); In re Vioxx the HIPAA infor (''Informal discovery protected health (E.D.La. "4 2036797 at July 2005 WL Lit., Liab. patient prohibited unless now mation is 2005)(court recognized it must consider consents."); Market v. Boston Corp., EEOC determining to allow ex whether Dec.16, (E.D.N.Y. at "5 WL 3327264 2004 2004)("ex providers); Bayne with medical communications regarding parte communications Provost, F.Supp.2d information, ex while not of health protective en (N.D.N.Y.2005)(qualified HIPAA, ... too prohibited create pressly request parte communica for ex make tered to running of that statute's afoul great risk of HIPAA); v. Am. Home comply Smith with tion protecting the policy in favor of strong federal A.2d 105, 855 Prods. 372 N.J.Super. Corp., records"). privacy (2003)(broad use of informal discovery pro readjusted ensure Co., cedures "must somehow Supply Mobile Home v. Suburban 2. Hulse objectives HI- under Oct.12, compliance the federal (D.Kan. *2 at WL 2927519 PAA"). granting ex inter 2006)(proposed order tion would be If malpractice obtained.
plaintiff sign would not an authorization that
set no limits on disclosure under state or law, such an authorization would sim-
ply presented judge's for the trial signa- general
ture. The same matter, having
this been validated this
Court, would become the pre- standard order
sented for judge's signature the trial in all
future proceedings. The pro- disclosure of
tected health information would then take
place without the knowledge of the
event knowledge or the of which
health information was disclosed. Irrelevant potentially embarrassing
would become available to defense counsel
solely for tactical advantage. Such a result contrary
would be strong public HIPAA's
policy in protecting favor of health informa-
tion from unnecessary and it contrary
would be to state and federal law.
CONCLUSION
T12 This Court has determined that ex
parte communication remains viable follow-
ing the enactment of the privacy
regulations provided that the court order
which authorizes such communication com-
plies with of state law and By so, doing HIPAA. this Court has
upheld jurisprudence its concerning giving
communication while effect to limi-
tations that HIPAA imposes on the disclo-
sure of health information.
Dustin Heath WOLFE,
The Honorable James R. Associ Judge ate District of the District Court ORDER Oklahoma, Respon Choctaw dent. 'I 1 Original jurisdiction is assumed. Art. 7 104,376. No. § Okla. Const. a hearing After before the referee, the court finds that:
Supreme Court of Oklahoma. (1) parties The real in interest had ini- April tially jury demanded a pre-trial trial. The jury
conference order indicates that trial waived; was not