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Discovery & Protective Orders & Ex parte Interviews with Plaintiffs’ Health Care Providers

Ex parte Freudenberger (In re: Rhonda Brewer and Charlie Brewer v. Crestwood Medical Center, LLC; Curt Freudenberger, M.D.; and Sportsmed Orthopedic Surgery & Spine Center, P.C., Madison Circuit Court), [Ms. 1190159, June 30, 2020] __ So. 3d __ (Ala. 2020) (Sellers, J., joined by Bolin, J.; Mendheim, J., joined by Mitchell, J., writes separately to concur specially; Shaw, J., joined by Bryan, J., writes separately, concurring in the result; Stewart, J., writes separately, concurring in the result; Wise, J., concurs in the result; and Parker, C.J., dissents, without writing).  The four-vote plurality opinion grants a petition for a writ of mandamus and directs the Madison Circuit Court to vacate a protective order prohibiting ex parte communications by defense counsel with plaintiff’s health care providers.

This is at least the fifth time within the past twenty years the issue of a trial court’s discretion to limit an attorney’s ex parte contacts with health care providers was presented to the Court in the context of a petition for a writ of mandamus.  On each prior occasion, the petition was denied, without opinion.  See, Ex parte Eagan, Supreme Court Case No. 1001142, petition for writ of mandamus denied, without opinion, March 8, 2002 (Brown, J.; and Moore, C.J., and Houston, See, Lyons, Johnstone, Harwood, and Woodall, JJ., concur; Stuart, J., not sitting); Ex parte Farley, Supreme Court Case No. 1100570, petition for writ of mandamus denied without opinion June 10, 2011 (Stuart, J.; Cobb, C.J., and Parker, Shaw, and Wise, JJ., concur); Ex parte Mobile Infirmary Association, d/b/a Mobile Infirmary Medical Center, Supreme Court Case Nos. 1130677, 1130678, petitions for writs of mandamus denied without opinions December 5, 2014 (Wise, J.; Moore, C.J., and Stuart, Bolin, Parker and Shaw, JJ., concur); and Ex parte Rose Carpenter, as the Personal Representative and Administratrix of the Estate of David Brandon Chambers, Deceased, Supreme Court Case No. 1140963, petition for a writ of mandamus denied without opinion June 17, 2015 (Moore, C.J.; Stuart, Bolin, Parker, Murdoch, Shaw, Main, Wise, and Bryan JJ., concur).  Most recently, the Court of Civil Appeals in a written opinion found that this sort of discovery dispute does not meet Ocwen’s criteria for extraordinary mandamus relief.  See Ex parte Alabama Gas Corp., 258 So. 3d 1148 (Ala. Civ. App. 2018)(Thomas, J.; Thompson, P.J., and Pittman and Donaldson, JJ., concur; Moore, J., concurs in the result).

In this case, the Court again had the benefit of extensive briefing by the parties and amici (including the Alabama Association for Justice and others), and the benefit of oral argument, but nevertheless declined to deliver a precedential opinion that changes anything about settled Alabama law.  In consequence, Ex parte Henry, 770 So. 2d 76 (Ala. 2000), remains the controlling opinion on this issue.

Each separate writing should be studied to discern how the individual justices view the ex parte communications issue.  Justice Sellers’s plurality opinion (joined only by Justice Bolin) discounts the role of HIPAA, but leaves open the door for protective orders upon particularized showings of need by plaintiffs.  All the separate special writings also leave the door open for trial courts to exercise discretion and to fashion protective orders prohibiting ex parte communications with health care providers upon particularized showings of need by plaintiffs’ counsel.  For example, Justice Mendheim (joined by Justice Mitchell) writes:

In my opinion, the trial court’s error in this case was issuing a “blanket” prohibition on ex parte interviews by Dr. Freudenberger’s lawyers of Rhonda Brewer’s medical providers without any other considerations.  The trial court should have considered the specific facts and issues of the case, balanced the competing positions of the litigants regarding ex parte interviews, and then issued an appropriate qualified protective order. . . .

Ms. *19.

In this case, the Brewers offered no patient-specific reason why any restrictions beyond those listed in 45 C.F.R. § 164.512(e)(1)(v) should be placed upon Dr. Freudenberger’s ex parte interviews of Rhonda’s treating physicians.  Accordingly, as the main opinion concluded, the trial court in this case exceeded its discretion by requiring additional restrictions without sufficient justification of privacy concerns from the Brewers.  On return of the case to the trial court, I believe that the Brewers would have the opportunity to present specific arguments to the trial court consistent with the parameters discussed herein.

Ms. *21.

Justices Mendheim and Mitchell believe that limitations can be placed on ex parte contacts “if the particular circumstances warranted such measures.”  Ms. *17.  In their view, a plaintiff has to prove facts specific to the case, and cannot get a limitation order just by arguing general public policy or generic “tactical litigation strategy.”  They offer a few hints as what case-specific facts, “such as sensitive medical history irrelevant to the lawsuit,” might be persuasive.  Other examples include: cases involving “a minor, an independent confidentiality issue, sexual issues, unnecessary embarrassment, and so forth.”  Even if defense counsel is permitted to contact treating physicians, these two say that certain notice and procedural protections for the plaintiff could be added to the HIPAA order: “one requirement federal district courts sometimes add in qualified protective orders that address ex parte interviews is ‘clear and explicit’ notice to the plaintiff’s physician about the purpose of the interview and that the physician is not required to speak to defense.”  Ms. *18.  Further, they say:

“Other courts have suggested ‘affording plaintiff’s counsel the opportunity to communicate with the physician, if necessary, in order to express any appropriate concerns as to the proper scope of the interview and the extent to which plaintiff continues to assert the patient-physician privilege.’ [citations omitted].  Generally speaking, I believe regulations such as these could be deemed appropriate as ‘standard language’ in a HIPAA qualified protective order.”

Ms. *19.

Justice Stewart says that plaintiffs have a privacy interest in their medical records that are not relevant to the litigation.  “Accordingly, a plaintiff seeking to limit the scope of an ex parte interview with a treating physician is authorized under the Alabama Rules of Civil Procedure to seek a protective order to prevent the disclosure of medical information that is irrelevant to the disposition of a claim or defense raised in the action.”  She further opines:

The trial court is in the best position to craft, on a case-by-case basis, a protective order specific to the facts of the case setting forth the precise parameters within which ex parte interviews of treating physicians may be conducted.  I would adopt the reasoning of the Georgia Supreme Court in Baker v. Wellstar Health System, Inc., 288 Ga. 336, 339, 703 S.E.2d 601, 605 (2010), in which the Georgia Supreme Court “exhort[ed] trial courts, in authorizing [ex parte] interviews [of treating physicians], to fashion their orders carefully and with specificity as to scope” and in which that court developed a framework for trial courts in that state to follow when issuing such orders [citations omitted]:

“[I]n issuing orders authorizing ex parte interviews, trial courts should state with particularity: (1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which the health care provider(s) may be interviewed; (3) the fact that the interview is at the request of the defendant, not the patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider’s participation in the interview is voluntary. ...  In addition, when issuing or modifying such orders, trial courts should consider whether the circumstances – including any evidence indicating that ex parte interviews have or are expected to stray beyond their proper bounds – warrant requiring defense counsel to provide the patient-plaintiff with prior notice of, and the opportunity to appear at, scheduled interviews or, alternatively, requiring the transcription of the interview by a court reporter at the patient-plaintiff’s request.”

Ms. *26-27.

Justice Stewart concludes “[a]ccordingly, I would issue the writ, but with direction to the trial court to conduct a hearing to allow the parties to present evidence in conjunction with the aforementioned parameters.”  Ms. *28.

Justice Shaw (joined by Justice Bryan) writes:

            “‘Any concerns that ex parte interviews might be abused could be remedied by a more narrowly tailored and equitable order.  I therefore agree that the writ should be issued, and I concur in the result.’”

Ms. *22.

The end result is a non-precedential plurality opinion demonstrating no clear consensus among the justices.

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