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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harrold-Jones v. Drury (6/22/2018) sp-7253
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
TARRI HARROLD-JONES )
and DARRYL L. JONES, ) Supreme Court No. S-16436
)
Petitioners, ) Superior Court No. 3PA-16-01470 CI
)
v.
) O P I N I O N
)
TUCKER DRURY, M.D.; WILLIAM ) No. 7253 - June 22, 2018
PACE, M.D.; and DENALI )
ORTHOPEDIC SURGERY, P.C., )
)
Respondents. )
)
Petition for Review from the Superior Court of the State of
Alaska, Third Judicial District, Palmer, Gregory Heath,
Judge.
Appearances: Darryl L. Thompson, Darryl L. Thompson,
P.C., Anchorage, for Petitioners. DonnaM. Meyers,Whitney
L. Traeger, and Timothy J. Lamb, Delaney Wiles, Inc.,
Anchorage, for Respondents. Roger F. Holmes, Biss &
Holmes, Anchorage, for Amicus CuriaeAlaskaStateMedical
Association. Margaret Simonian, Dillon & Findley, P.C.,
Anchorage, for Amicus Curiae Alaska Trial Lawyers.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
WINFREE, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
We granted this petition for review to consider how the federal Health
Insurance Portability and Accountability Act of 1996 (HIPAA) - establishing medical
privacy standards with specific exceptions - affected our personal injury case law
allowing a defendant ex parte contact with a plaintiff's doctors as a method of informal
discovery. We requested that the parties specifically brief whether the federal law
preempted our case law, or, if not, whether federal law otherwise required us to overrule
or modify our case law. We conclude that the federal law does not preempt our existing
case law. But we also conclude that we should overrule our case law because its
foundations have been eroded by a cultural shift in views on medical privacy and new
federal procedural requirements undermining the use of ex parte contact as an informal
discovery measure. We therefore hold that - absent voluntary agreement - a
defendant may not make ex parte contact with a plaintiff's treating physicians without
a court order, which generally should not be issued absent extraordinary circumstances.
We believe that formal discovery methods are more likely to comply with the federal law
and promote justice and that such court orders rarely, if ever, will be necessary.
II. FACTS AND PROCEEDINGS
In August 2014 Tarri Harrold-Jones fractured her clavicle. She visited the
emergency room and was referred to Denali Orthopedic Surgery. Dr. Tucker Drury, a
Denali physician, later performed corrective surgery. Harrold-Jones experienced
continued pain and discomfort following the surgical procedure and she returned to
Denali, where Dr. William Pace evaluated her.
Harrold-Jones ended treatmentat Denali and transferredher care to another
doctor. Harrold-Jones later retained counsel who sent Denali a letter in early 2015,
attaching a draft complaint alleging Drs. Drury's and Pace's malpractice and seeking
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1
compensation. Denali's counsel responded by requesting a medical release authorizing
access to Harrold-Jones's "complete medical record or designated record set" and
authorizing ex parte contact with her medical providers. Harrold-Jones refused to sign
the authorization. Denali's counsel responded by narrowing the request to a release for
Harrold-Jones's new doctor's office and to allow counsel to make ex parte contact with
2 Harrold-Jones refused to sign this authorization and two similar
the new doctor.
requested authorizations in the following months.
Harrold-Jones filed a medical malpractice suit against Denali and the two
doctors in April 2016. Denali's counsel renewed the request for a release authorizing ex
parte contact with Harrold-Jones's new doctor three more times. Harrold-Jones
continued to refuse this authorization, and she sought a protective order prohibiting
Denali from having ex parte contact with her new treating doctor. Denali opposed and
moved to compel Harrold-Jones to authorize such contact. The superior court denied
Harrold-Jones's motion and granted Denali's in August 2016, relying on Langdon v.
Champion as the basis for its ruling.3
1 Denali, Dr. Drury, and Dr. Pace are hereafter collectively referred to as
"Denali" unless otherwise necessary for our discussion.
2 In this context, ex parte contact, also referred to as ex parte interview, ex
parte communication, or ex parte conference, occurs when a defendant or defendant's
counsel meets with a plaintiff's treating physician without the plaintiff or plaintiff's
counsel present. We approved ex parte contact as an informal discovery measure in a
series of decisions in the 1970s and 1980s, culminating in Langdon v. Champion, 745
P.2d 1371, 1375 (Alaska 1987).
3 Id. ("We conclude that [our case law] authorize[s] defense counsel to
engage in informal ex parte conferences with a plaintiff's treating physician.").
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Harrold-Jones petitioned for review, which we granted to decide whether
HIPAA preempts our case law allowing ex parte contact with a plaintiff's treating
physician or otherwise requires us to overrule or modify that case law.
III. STANDARD OF REVIEW
"Whether a defendant's counsel has the right to engage in informal ex parte
4
interviews with a plaintiff's treating physician is a question of law."
The "interpretation
5
of federal statutes" is a question of law. "Whether a federal statute preempts a state
6
court rule is also a question of law." "We review questions of law de novo, 'adopting
7
the rule of law most persuasive in light of precedent, reason, and policy.' "
IV. DISCUSSION
We granted Harrold-Jones's petition for review primarily to decide
HIPAA's effect on "our existing case law regarding a plaintiff's waiver of the
patient/physician privilege and ex parte communications between defense counsel and
8
the plaintiff's treating physicians." Having reviewed HIPAA and the regulations
promulgated under its authority, we conclude that federal law does not preempt our
decisions allowing ex parte communications between defense counsel and a plaintiff's
treating physicians. But new procedural requirements HIPAA imposes on ex parte
contact - amidst a cultural shift emphasizing medical privacy - significantly
4 Id. at 1372 n.2.
5 Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 386 (Alaska 2013).
6 Catalina Yachts v. Pierce, 105 P.3d 125, 128 (Alaska 2005).
7 Id. (quoting Kodiak Island Borough v. Roe, 63 P.3d 1009, 1012 n.6 (Alaska
2003)).
8 Harrold-Jones v. Drury, No. S-16436 (Alaska Supreme Court Order,
Nov. 2, 2016).
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----------------------- Page 5-----------------------
undermine the reasoning behind our original decisions. Based on this change in
circumstances, we overrule Langdon and hold that - absent agreement by the plaintiff
- a defendant or defendant's counsel may not make ex parte contact with a plaintiff's
treating physician unless authorized to do so by a court order, which we believe
generally should be available only under extraordinary circumstances.
A. HIPAA Provides Privacy Protections, With Relevant Exceptions.
We begin our analysis with the federal law in question. Congress enacted
HIPAA in 1996 to improve health insurance coverage, combat fraud, and simplify health
9
insurance administration.
Subtitle F of HIPAA addressed patient privacy by defining
protected health information, defining entities who must protect health information, and
requesting further privacy recommendations from the Department of Health and Human
10 Congress instructed HHS to promulgate further privacy regulations
Services (HHS).
if Congress failed to do so within three years of HIPAA's enactment.11
After the three
12
a
years passed without congressional action, HHS promulgated the "Privacy Rule,"
series of regulations governing permitted uses and disclosures of protected health
information. Together, Subtitle F of HIPAA and the Privacy Rule form the federal law
at issue in this case, which we will refer to collectively as HIPAA for ease of reference.
9 HealthInsurancePortability and AccountabilityActof1996(HIPAA),Pub.
L. No. 104-191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29, and 42
U.S.C.).
10 Id. §§ 261-62, 264.
11 Id. § 264.
12 45 C.F.R. §§ 160, 164 (2017).
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1. Overview of privacy protections
HIPAA's privacy framework begins with express preemption. HIPAA
13
preempts contrary state laws unless they are more stringent than HIPAA itself.
A state
law is "contrary" to HIPAA if a covered entity would find it impossible to comply with
both the state and federal requirements or if the state law is an obstacle to the
14
accomplishment of the full purposes of HIPAA section 264.
HIPAA then protects a subject individual's privacy with a two-part rule
15
regarding protected health information. First, HIPAA broadly prohibits any covered
16 17 18
entity
from using or disclosing protected health information. Denali does not
disputethat expartecontact with Harrold-Jones'streatingphysicianwouldconstituteuse
or disclosure of protected health information by a covered entity. Second, HIPAA
13 HIPAA § 264(c)(2).
14
45 C.F.R. § 160.202. Section 160.202 also provides that a state law is
contrary to HIPAA if it is contrary to sections 13400 to 13424 of the American Recovery
and Reinvestment Act of 2009, but these provisions are not relevant to this petition.
15 See 45 C.F.R. § 164.502(a) ("A covered entity or business associate may
not use or disclose protected health information, except as permitted or required by
[HIPAA].").
16 45 C.F.R. § 160.103 defines a "[c]overed entity" as a health plan, health
care clearinghouse, or health care provider who transmits any health information in
electronic form in a HIPAA-covered transaction.
17 45 C.F.R. § 160.103 defines "[u]se" as "the sharing, employment,
application, utilization, examination, or analysis of [individually identifiable health
information]" and "[d]isclosure" as "the release, transfer, provision of access to, or
divulging in any manner of information outside the entity holding the information."
18 45 C.F.R. § 160.103 defines "[p]rotected health information" as
"individually identifiable health information."
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19
provides specific exceptions to the prohibition for enumerated uses and disclosures.
20
Only two HIPAA exceptions require disclosure; the remainder leave the choice of
21 Two of these permissive exceptions are applicable
disclosure to the covered entity.
here. First, a covered entity may disclose protected health information with a valid
authorization from the subject individual (the authorization exception).22 Second, a
covered entity may disclose protected health information in the context of a judicial or
administrative proceeding (the litigation exception).23
2. The authorization exception
The authorization exception allows permissive disclosure once the subject
24
executes a valid authorization. A valid authorization contains at minimum: (1) a
statement of the remuneration, if any is involved; (2) a description of the information to
be used or disclosed identified in a specific and meaningful fashion; (3) "[t]he name or
other specific identification of the person(s), or class of persons, authorized to make the
requested use or disclosure"; (4) "[t]he name or other specific identification of the
person(s), or class of persons, to whom the covered entity may make the requested use
19 45 C.F.R. § 164.502(a).
20
The two mandatory exceptions, concerning an individual's right to
information and HHS's enforcement of its regulations, are not at issue here. See id.
§ 164.502(a)(2).
21 Compare id. § 164.502(a)(1) ("A covered entity is permitted to use or
disclose protected health information as follows . . . ." (emphasis added)), with id.
§ 164.502(a)(2) ("A covered entity is required to disclose protected health information
. . . . (emphasis added)).
22 Id. § 164.508.
23 Id. § 164.512(e).
24 Id. § 164.508(b)(1).
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or disclosure"; (5) "[a] description of each purpose of the requested use or disclosure";
(6) an expiration date or event related to the subject or the purpose of the use or
25 An authorization must be
disclosure; and (7) the date and the subject's signature.
26 and contain a statement informing the subject of the right to
written in plain language
revoke the authorization.27 The subject may revoke an authorization at any time.28
Covered entities making disclosures under HIPAA normally "must make
reasonable efforts to limit protected health information to the minimum necessary to
accomplish the intended purpose" of the disclosure.29 But the minimum necessary
standard does not apply to disclosures made under the authorization exception30 because
authorizations are "voluntary";31 the scope of disclosure is instead governed by the terms
of the authorization.32
25 Id. §§ 164.508(a)(3)(ii), (a)(4)(ii), (c)(1).
26 Id. § 164.508(c)(3).
27 Id. § 164.508(c)(2)(i).
28 Id. § 164.508(b)(5). This right is subject to two exceptions not at issue in
this case. See id. § 164.508(b)(5)(i)-(ii).
29 Id. § 164.502(b)(1).
30 Id. § 164.502(b)(2)(iii).
31 See Standards for Privacy of Individually Identifiable Health Information,
65 Fed. Reg. 82,462, 82,519 (Dec. 28, 2000).
32 45 C.F.R. § 164.508(a)(1) ("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."); see also Standards for Privacy
of Individually Identifiable Health Information, 65 Fed. Reg. at 82,513-14 ("In the final
rule, we clarify that covered entities are bound by the statements provided on the
authorization; use or disclosure by the covered entity for purposes inconsistent with the
(continued...)
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3. The litigation exception
Thelitigationexceptioncontrastingly allowsfor permissivedisclosureeven
against the subject's wishes. A covered entity may disclose protected health information
if, and only to the extent that, the disclosure is otherwise required by law and the covered
entity meets one of three litigation-related requirements. 33
First, the disclosure can be
34
made in response to an authorizing court order, such as a court-issued subpoena.
HIPAA restricts such orders to "mandate[s] contained in law that compel[] an entity to
make a use or disclosure of protected health information and that is enforceable in a court
35
of law"; accordingly state court orders must also comply with state law under HIPAA.
Second, the disclosure can be made in response to a party's subpoena, discovery request,
or other lawful process if the covered entity receives "satisfactory assurances" from the
36 "Satisfactory assurances" means the requesting party either has
requesting party.
32 (...continued)
statements made in the authorization constitute a violation of this rule.").
33 45 C.F.R. § 164.512(a).
34
Id. § 164.512(e)(1)(i); see also Standards for Privacy of Individually
Identifiable Health Information, 65 Fed. Reg. 82,462, 82,529 (Dec. 28, 2000) ("For
example, a subpoena issued by a court constitutes a disclosure which is required by law
as defined in this rule, and nothing in this rule is intended to interfere with the ability of
the covered entity to comply with such subpoena.").
35 See 45 C.F.R. § 164.103. For instance, it would violate HIPAA if, under
Alaska law, a trial court's order constituted an abuse of discretion by being overly broad.
Cf. Khalsa v. Chose, 261 P.3d 367, 373 (Alaska 2011) (upholding order to sign medical
waivers against challenge that order was overbroad).
36 45 C.F.R. § 164.512(e)(1)(ii).
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37
provided the subject notice and opportunity to object or has received a qualified
protective order limiting disclosure to that relevant to the current proceeding. 38 Third,
the disclosure can be made in response to a party's subpoena, discovery request, or other
lawful process if the covered entity itself provides the subject with notice and
39 As with the authorization
opportunity to object or seeks a qualified protective order.
exception, the covered entity is not obligated by HIPAA to make any disclosure under
any of the three litigation exception avenues.40
The scope of disclosure subtly differs between the authorization exception
and the litigation exception, and within the litigation exception's different mechanisms.
While the scope of disclosure under the authorization exception is determined by the
authorization's language, the scope of disclosure under a court order is determined by
41 But the scope of qualified protective orders is
the terms of that order - i.e., state law.
defined by HIPAA itself; all qualified protective orders must contain a prohibition on the
use or disclosure of protected health information for any purpose other than the current
proceeding and a required return or destruction of the protected health information at
37 Id. § 164.512(e)(1)(ii)(A).
38 Id. § 164.512(e)(1)(ii)(B).
39 Id. § 164.512(e)(1)(vi).
40 Id. § 164.502(a)(1).
41 Compare id. § 164.508(a)(1) ("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."), with id. § 164.512(e)(1),
(1)(i) ("A covered entity may disclose protected health information in the course of any
judicial or administrative proceeding . . . provided that the covered entity discloses only
the protected health information expressly authorized by such order."); see also supra
note 35.
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42
litigation's end. As with the authorization exception, HIPAA's minimum necessary
43 44
requirements
do not apply tothelitigation exception because"theindividual exercises
the right to object before the court or other body having jurisdiction over the
proceeding."45
B. HIPAA Does Not Preempt Alaska Law Allowing Ex Parte Contact.
Under the Supremacy Clause, "the Laws of the United States . . . 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."46
This
clause mandates federal preemption of state law when a federal law contains express
preemptive language, conflicts with a state law, or displaces all state laws by occupying
47
HIPAA contains express preemptive language; therefore the
the entire regulated field.
48
express preemption doctrine governs this case.
42 45 C.F.R. § 164.512(e)(v).
43 See supra p. 8.
44 See 45 C.F.R. § 164.502(b)(2)(v) ("This [minimum necessary] requirement
does not apply to . . . [u]ses or disclosures that are required by law, as described by
§ 164.512(a) . . . .").
45 See Standards for Privacy of Individually Identifiable Health Information,
65 Fed. Reg. 82,462, 82,530 (Dec. 28, 2000); see also id. at 82,531 ("Where a disclosure
made pursuant to this paragraph is required by law, such as in the case of an order from
a court or administrative tribunal, the minimum necessary requirements in § 164.514(d)
do not apply.").
46 U.S. Const. art. VI, cl. 2.
47 Allen v. State, Dep't of Health & Soc. Servs., Div. of Pub. Assistance , 203
P.3d 1155, 1161-62 (Alaska 2009).
48 See id. at 1161; HIPAA § 264(c)(2).
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HIPAA's preemption clause states: "A regulation promulgated under
[HIPAA] shall not supercede a contrary provision of State law, if the provision of state
law imposes requirements, standards, or implementation specifications that are more
stringent than the requirements, standards, or implementation specifications imposed
49 "Contrary . . . means: (1) A covered entity or business associate
under the regulation."
would find it impossible to comply with both the State and Federal requirements; or
(2) the provision of State law stands as an obstacle to the accomplishment and execution
of the full purposes and objectives of [HIPAA section 264]."50 Applying the plain
language of HIPAA's two-part test, the Langdon rule is not preempted because it is not
contrary to HIPAA.51
First, a covered entity would not "find it impossible to comply with both
52 Though HIPAAbroadly prohibits covered entities
theStateandFederalrequirements."
from disclosing health information without the subject's consent,53 HIPAA expressly
contemplates exceptions to this rule. Specifically, the authorization exception allows for
"use or disclosure of protected health information" when "a covered entity obtains or
receives a valid authorization for its use."54 Harrold-Jones's treating physician could
49 HIPAA § 264(c)(2).
50 45 C.F.R. § 160.202.
51 See Standards for Privacy of Individually Identifiable Health Information,
64 Fed. Reg. 59,918, 59,996 (proposed Nov. 3, 1999) ("The term 'contrary' appears
throughout [HIPAA] and is a precondition for any preemption analysis done under that
section.").
52 45 C.F.R. § 160.202.
53 Id. § 164.502(a).
54 Id. § 164.508(a)(1).
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thus comply with "both the State and Federal requirements" if Harrold-Jones voluntarily
55
consented to ex parte contact through HIPAA's authorization exception.
Similarly, the
litigation exception provides that a "covered entity may disclose protected health
information in the course of any judicial or administrative proceeding" in response to a
56 Ex parte contacts under Alaska law are unquestionably "in the course of
court order.
a[] judicial proceeding";57 Denali could therefore obtain a court order authorizing
Harrold-Jones's treating physician's ex parte contact with Denali's counsel. Given these
exceptions, a covered entity would not "find it impossible to comply with both the State
and Federal requirements."58
Second, the Langdon rule is not an "obstacle to the accomplishment and
execution of the full purposes and objectives of [HIPAA section 264]."59 HIPAA section
264 directed HHS to promulgate regulations addressing: (1) "rights that an individual
who is a subject of individually identifiable health information should have";
55 See Murphy v. Dulay, 768 F.3d 1360, 1374 (11th. Cir. 2014)
("Accordingly, no other HIPAA exception for disclosure needs to be satisfied once an
individual signs a valid written authorization."); Arons v. Jutkowitz , 880 N.E.2d 831,842
(N.Y. 2007) ("After plaintiffs declined to sign [HIPAA-compliant] authorizations,
defendants asked the trial courts for orders compelling them to do so, and the courts
granted these requests. This was entirely proper.").
56 45 C.F.R. § 164.512(e)(1).
57 See Trans-World Invs. v. Drobny, 554 P.2d 1148, 1152 n.15 (Alaska 1976)
("[T]he filing of the personal injury suit is the operative fact of waiver."); see also
Proceeding, BLACK 'S LAW DICTIONARY (10th ed. 2014) ("The regular and orderly
progression of a lawsuit, including all acts and events between the time of
commencement and the entry of judgment.").
58 See 45 C.F.R. § 160.202.
59 Id.
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(2) "procedures that should be established for the exercise of such rights"; and (3) "uses
60
and disclosures of such information that should be authorized or required." HHS
responded by promulgating a rule that contained no mention of ex parte contact and did
61 In
not explicitly prevent states from conditioning lawsuits on authorization waivers.
fact, the rule allowed states to condition public benefits on the execution of an
authorization.62 HHS's allowance of public benefit conditions - while failing to
precludeconditionsonlawsuitsandonly specifically prohibitingconditionsonproviding
treatment - suggests that compelling allowance of ex parte contact with a plaintiff's
treating physician is not an "obstacle to the accomplishment and execution of the full
purposes and objectives of [HIPAA]."63 Therefore, because a plaintiff's treating
physician can make ex parte contact in Alaska without violating HIPAA or frustrating
its full purposes and objectives, HIPAA does not preempt Langdon .
Harrold-Jones argues that this conclusion cannot becorrectbecause"[s]tate
law is preempted unless state law provides for more stringent privacy protections than
that provided by HIPAA." But Harrold-Jones misconstrues HIPAA. The threshold step
in conducting HIPAA's preemption analysis is whether the state law is "contrary" to
60 HIPAA § 264(b)-(c).
61 See 45 C.F.R. § 164.508(b)(4).
62 See Murphy v. Dulay, 768 F.3d 1360, 1375 (11th Cir. 2014) ("Had the
drafters of the HIPAA regulations wished to preclude a state legislature from
conditioning a public benefit - such as filing a lawsuit - on signing a HIPAA
authorization, they could have easily done so, just as they generally prohibited doctors
fromconditioningmedical treatment on signing aHIPAAauthorization. Theregulations
do not do so, and we must give effect to the regulations' silence.").
63 45 C.F.R. § 160.202.
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HIPAA; if the state law is not contrary, no stringency analysis is required. Harrold-
Jones's stringency argument fails.
We therefore conclude that HIPAA does not preempt our existing case law
allowing ex parte contact between defense counsel and a plaintiff's treating physician.
C. Ex Parte Contact Over The Plaintiff's Objection Is No Longer
Appropriate Under Alaska Law.
Our analysis does not end there. Although the Supremacy Clause may not
forbid ex parte contact in Alaska, HIPAA embodies a cultural shift in how medical
privacy is viewed and has created a new procedural framework for sharing medical
information in litigation. Having considered HIPAA's underpinnings and reviewed this
new framework, the legal basis for our ex parte contact jurisprudence, and how ex parte
contact operates under this new framework, we no longer are convinced that unrestricted
ex parte access to a plaintiff's treating physician over the plaintiff's objection should be
allowed.
Our decision is informed both by HIPAA and the original rationale of the
Langdon rule. We first articulated the reasoning behind Langdon in Trans-World
Investments v. Drobny , where we noted: "We find no legal impediments . . . limit[ing]
informal methods of discovery, such as private conferences with the attending
physicians[;] . . . . such informal methods are to be encouraged, for they facilitate early
evaluation and settlement of cases, with a resulting decrease in litigation costs, and
64 We reaffirmed Drobny in
represent further the wise application of judicial resources."
Arctic Motor Freight, Inc. v. Stover , explaining that "the filing of a personal injury action
by the plaintiff results in a waiver of his physician-patient privilege as to all information
concerning his health and medical history relevant to the matters which he has placed in
64 554 P.2d 1148, 1151-52 (Alaska 1976).
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65
issue in the litigation." The Langdon rule thus began with our recognition that waiver
of the physician-patient privilege removed any barrier to informal contact between a
plaintiff's treating physician and defense counsel.
That rationale is no longer sound in light of HIPAA. As explained above,
a plaintiff's treating physician could disclose protected information in compliance with
HIPAA in one of two ways: either the plaintiff could sign an authorization allowing the
66 or the trial court could issue an order
physician to disclose protected health information
authorizing the physician to disclose protected health information.67 But both options
come with procedural barriers requiring trial court intervention, thus eroding any rule
based on a lack of "legal impediments in existence which limit informal methods of
discovery."68
First, the authorization exception is limited by the plaintiff's federal right
to revoke authorization at any time.69 The right to revoke was specifically included to
70 And because the scope of disclosure under
ensure that all authorizations are voluntary.
65 571 P.2d 1006, 1008 (Alaska 1977).
66 See 45 C.F.R. § 164.508(a)(1).
67 See id. § 164.512(e)(1).
68 See Drobny, 554 P.2d at 1151.
69 See 45 C.F.R § 164.508(b)(5).
70 See Standards for Privacy of Individually Identifiable Health Information,
65 Fed. Reg. 82,462, 82,657-58 (Dec. 28, 2000) (explaining that HHS "intend[s] the
authorizations required under this rule to be voluntary for individuals" and that "this
right [to revoke an authorization at any time] is essential to ensuring that the
authorization is voluntary").
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71
this exception is determined by the language of the release itself, the trial court
necessarily must - to make the release truly voluntary - limit the terms of a disputed
release to those necessary to effectuate the litigation. The trial court must be active,
understand the nature of the litigation, and hear the parties' arguments to craft an
appropriate release; we decline to adopt a rule by judicial fiat requiring that a personal
injury plaintiff submit a broad medical release that includes allowing ex parte contact
72 The authorization
with the plaintiff's doctors as a condition of bringing a lawsuit.
exception therefore cannot be relied on to preserve ex parte contact without judicial
oversight.
Second, the litigation exception is limited by the court order requirement.
The litigation exception allows for disclosures either by court order or "[i]n response to
73 The latter category
a subpoena, discovery request, or other lawful process."
contemplates formal procedure: subpoenas, discovery requests, and lawful process are
74 And HIPAA's satisfactory assurances requirement,
all mechanisms under court rules.
71 See supra p. 8 and n.32.
72 Some states' legislatures have enacted a standard release that a plaintiff
must sign to bring a personal injury suit. See Murphy v. Dulay, 768 F.3d 1360, 1375
(11th Cir. 2014) (Florida); Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs.,
Inc., 418 S.W.3d 547, 557-58 (Tenn. 2013); In re Collins, 286 S.W.3d 911, 920 (Tex.
2009). As in these jurisdictions, Alaska's legislature could enact a law requiring a
standard release that would not be preempted by HIPAA. But even were the legislature
to do so, trial courts would have to interpret disputed language in the release, and the
problem we have identified would remain unresolved.
73 45 C.F.R. § 164.512(e)(1)(i)-(ii).
74 See Caldwell v. Chauvin, 464 S.W.3d 139, 151-53 (Ky. 2015) (holding ex
parte interviews were available pursuant to court order but "do not come within the
meaning of lawful processas used in 45 C.F.R. § 165.512(e)(1(ii)"). We agree with the
(continued...)
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requiring the requesting party or covered entity to obtain a qualified protective order or
75
give notice so the plaintiff can do the same,
expressly contemplates court oversight of
the discovery process. Ex parte interviews, which are defined by their informality and
76 cannot operate as "other lawful process" under HIPAA.
lack of court oversight,
This leaves the court order as HIPAA's last acceptable option, which
necessarily requires court oversight of the ex parte contact process. But like a court
dispute over the terms of a "voluntary" authorization, a court's time, expense, and energy
to weigh the terms of an ex parte contact and to issue an appropriate order limiting the
contact's scope completely undermine the original rationale for ex parte contact as a
cost-saving mechanism. At that point the court is effectively issuing discovery orders,
as with any other discovery dispute. The purpose of Langdon 's informal discovery was
to "further the wise application of judicial resources," allowing parties to evaluate claims
and defenses without involving the court.77 But complying with HIPAA, at least when
78 necessarily involves court time and expense. These limitations
the parties do not agree,
74 (...continued)
Caldwell court that "lawful process" is best read as meaning a court procedure like a
summons, and cannot simply mean "any action that is not illegal." Id. at 152. Contra
Holman v. Rasak, 785 N.W.2d 98, 106 (Mich. 2010) ("[A] request for an ex parte
interview is at least 'other lawful process' within the meaning of [HIPAA].").
75 See supra p. 9-10.
76 See Langdon v. Champion, 745 P.2d 1371, 1374 (Alaska 1987) (describing
ex parte interviews as "informal private conferences").
77 Id. at 1373 (quoting Trans-World Invs. v. Drobny, 554 P.2d 1148, 1151-52
(Alaska 1976)).
78 Nothing in this opinion should be construed as preventing a plaintiff from
voluntarily executing an acceptable authorization allowing ex parte contact. We hold
(continued...)
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makeour current ex parte contact system, though compatiblewith HIPAAin theabstract,
79
a poor discovery mechanism.
We therefore consider overruling Langdon under our
traditional stare decisis analysis.
"Wewilloverruleaprior decisiononly when clearly convinced that therule
was originally erroneous or is no longer sound because of changed conditions, and that
more good than harm would result from a departure from precedent."80 As explained,
the Langdon rule no longer is sound because of changed conditions, namely Congress's
enactment of HIPAA. Considering whether more harm than good would result from
overruling Langdon, we conclude that it would be better to move forward with a rule that
is more consistent with current views on medical privacy and that will ensure trial courts
are more focused on complying with HIPAA. We also note other courts' view that ex
parte contact undermines the fiduciary relationship between treating physician and
patient-plaintiff and presents opportunities for abuse that must be curbed by judicial
78 (...continued)
only that trial courts should abstain from compelling an authorization over a plaintiff's
objections.
79 See Sorensen v. Barbuto, 177 P.3d 614, 619 (Utah 2008) ("[A]ppropriately
limiting the scope of a treating physician's disclosure requires judicial monitoring that
cannot occur in the context of ex parte communications.").
80 Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859
(Alaska 2003)).
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81
oversight. We conclude that, absent agreement between the parties, medical discovery
should be conducted through the formal discovery rules rather than ex parte contact.
We therefore overrule Langdon 's general approval of defense ex parte
contacts with a plaintiff's treating physicians as an informal discovery device in the
normal course of litigation and agree that a plaintiff should not be compelled to authorize
such ex parte contacts. We believe that formal discovery methods are more apt to
comply with law and promote justice in the vast majority of cases and that there will be
few, if any, extraordinary situations in which an ex parte contact authorization order is
necessary under HIPAA's litigation exception.
D. It Was Error To Grant The Motion To Compel The Medical Release
In This Case.
Applying this standard, the circumstances of this case are far from
extraordinary. In fact, the only thing extraordinary is the breadth of Denali's requested
release for medical review.
Harrold-Jones is seeking compensation for medical malpractice in treating
her clavicle fracture. In response Denali asked Harrold-Jones to execute an almost
unrestricted release for her "complete medical record or designated record set, which
includes any and all information which is relative to [her] past or current physical or
mental medical condition." This expressly included records of psychiatric treatment,
psychological treatment, and drug and alcohol treatment, and would have authorized
81 See, e.g. , Duquette v. Superior Court , 778 P.2d 634, 640 (Ariz. App. 1989)
("We believe that ex parte communications between defense attorneys and plaintiffs'
treating physicians would be destructive of both the confidential and fiduciary natures
of the physician-patient relationship . . . ."); Sorensen, 177 P.3d at 619 ("Allowing ex
parte communications between a treating physician and opposing parties in litigation
would undermine the physician-patient relationship because patients would lack
adequate assurance that their candid responses to questions important to determining
their appropriate medical treatment would remain confidential.").
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Harrold-Jones's "physicians and other health care providers to discuss [her] history, care
and treatment and prognosis" with Denali's counsel. There was no special showing of
need for this request, nor did anything in the record suggest an ex parte interview with
Harrold-Jones's treating physician was necessary for a just adjudication.
It was error to grant the motion to compel Harrold-Jones to "voluntarily"
execute the tendered release. Any further discovery of information within Harrold-
Jones's new doctor's possession should proceed under the formal discovery rules and in
strict compliance with HIPAA.
V. CONCLUSION
We REVERSE the superior court's order and REMAND for further
proceedings consistent with this opinion. 82
82 We also granted review on what a plaintiff could require be included in a
HIPAA-compliant release before agreeing to sign it and when under HIPAA a qualified
protective order must be issued. Because we conclude that we should overrule our ex
parte contact case law in light of HIPAA, we do not address these questions in this
opinion.
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