Benjamin T. Harris, KLJ Staff Editor
From simple negligence cases to complex class action suits, the ability to engage in informal ex parte communications with crucial fact witnesses is a well-recognized and important step in the opening stages of litigation. Informal fact investigation is crucial at the outset of a suit, as it allows an attorney to accurately evaluate and plan a case, and is more likely to be accurate and complete. However, this method of information gathering proves troublesome when defendants in medical malpractice cases seek information from a physician who is treating an injured plaintiff, requiring the law to balance two countervailing interests: (1) the right of a plaintiff/patient to confidentiality under the Health Insurance Portability and Accountability Act (HIPAA), and (2) the right of a defendant to obtain information from crucial fact witnesses.
Last year, the Kentucky Supreme Court confronted this issue in Caldwell v. Chauvin. The case arose out of a discovery dispute in a medical malpractice action brought by the plaintiff, Caldwell, against a physician, Dr. Castro. Castro, after obtaining the plaintiff’s medical records, moved the trial court to enter a qualified protective order permitting him to make ex parte contacts with Caldwell’s health care providers. The trial court granted Castro’s order, but limited its scope to allow ex parte contact with those physicians who treated the plaintiff “for the injuries that are the subject matter of this litigation.” Caldwell was denied a writ of prohibition by the Kentucky Court of Appeals, and the case was certified to the Kentucky Supreme Court.
The Kentucky Supreme Court sought to “decide conclusively whether litigants in Kentucky may, and under what conditions, engage in ex parte communications with treating physicians.” The court in Caldwell determined that HIPAA does not exist as an outright bar to ex parte contacts with treating physicians, but instead superimposes procedural prerequisites over informal ex parte discovery. However, the court in Caldwell differed from other jurisdictions in its interpretation of the issues; namely, the court held that HIPAA’s procedural prerequisites to disclosure of protected health information may only be satisfied by a protective order obtained by the requesting party from the court. Finally, the court determined that because ex parte contacts are informal and voluntary, and because such disclosure is not mandatory under HIPAA, treating physicians are not required to speak with the requesting counsel.
In summary, Caldwell allows opposing counsel to participate in ex parte communications with a plaintiff’s treating physicians. However, this communication must be the result of a protective order from the trial court, which is issued at the courts discretion. In addition, the plaintiff’s treating physicians are under no obligation to speak with the requesting party. The scope and effect of Caldwell has been readily noted and its “importance to defense practitioners in personal injury litigation cannot be overstated.” Before this decision, “in all cases where a plaintiff’s medical condition was at issue, plaintiff’s counsel had the exclusive ability to ex parte interview treating physicians, nurses, and other health care providers to develop their claims and obtain inexpensive, effortless medical expert opinions.” However, the holding in Caldwell has opened up this avenue to defense practitioners, allowing them access to crucial facts necessary to construct a case, in addition to “highly credible opinion testimony.”
While the holding in Caldwell has opened up an important avenue of discovery to personal injury defendants, there are some issues that have yet to be resolved by the decision. First, it is important to note that the court simply superimposed HIPAA requirements over ex parte communications. Therefore, the holding did not alleviate any duties owed by a physician to their patient or by an attorney to their client. Second, the holding did not explicitly dictate the scope and required specificity of such protective orders. However, many of the disputes following Caldwell concern the scope of such protective orders. Orders can be shaped in overly broad terms, allowing a requesting party to access unrelated and irrelevant health information. Conversely, orders can be shaped in such a narrow fashion that they effectively undermine the benefit of ex parte communication. Finally, these orders can be fashioned with language that would lead a treating physician to believe that (1) the ex parte communication is required by law, or (2) the ex parte communication is a violation of duties owed to his or her patient. Ultimately, these issues stem more from the implementation of new law and the inherent malleability of language than they do from any logical defect in the holding of Caldwell. Regardless, the Caldwell decision has changed the landscape of Kentucky medical malpractice law and its effects are yet to be entirely known.
 J.D. expected May 2017.
 Thomas A. Mauet, Pretrial 19 (2008).
 See 45 C.F.R. § 164.502; 45 C.F.R. § 160.103.
 Caldwell v. Chauvin, 464 S.W.3d 139 (Ky. 2015).
 Id. at 144 (describing the various procedural prerequisites imposed by HIPAA privacy regulations under 45 C.F.R. § 164.512(e)(1)(i)-(ii)).
 Id. at 143.
 Caldwell, 464 S.W.3d at 151.
 Id. at 153.
 Edmund J. “Ned” Benson & Kathryn T. “Katie” Martin, Caldwell v. Chauvin Levels the Playing Field and More, Common Defense (Jan. 17 2016).
 But see Caldwell, 464 S.W.3d at 153-60 (discussing the fact that Kentucky does not recognize a physician-patient privilege, and declining to offer an analysis as if such a privilege did exist).
 However, it is important to note that the specific protective order at issue in Caldwell limited ex parte contacts to those physicians who treated Caldwell for “those injuries that are the subject matter of this litigation.” Caldwell, 464 S.W.3d at 144. In addition, the order did not require any treating physician to speak with or disclose protected information to Castro. Id.
* Featured image by Weiss Paarz, licensed under CC BY-SA 2.0.