1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) LISA LOVELACE , ) ) Plaintiff, ) ) v. ) Civil Act ion No. 19
- cv - 001154 ( ES H ) ) WASHINGTON H OSPITAL ) CENTER CORPORATION, d/b/a , ) MEDSTAR WASHINGTON HO SPITAL ) CENTER, et al. , ) ) Defendant s . )

_______________

__________________________ )

M EMORANDUM OPINION & O RDER
Before the Court is defendant W ashington Hospital Center Corporation d/b/a Medstar Washington Hospital Center ’ s ( “ MWHC ” ) motion for a prote ctive order. ( See Def. ’ s Mem. of
Law , ECF No. 30.) MWHC requests that the Court enter an order permitting it to engage in ex parte communications with plaintiff Lisa Lovelace ’ s treating physicians , arguing that utilizing formal discovery to speak to her numerous tr eating phy sic ians would be costly and in efficient,
and that such an order would be consistent with the Health Insurance Portabili ty and Accountability Act of 1996 ( “ HIPAA ” ) and D

. C

. law . Lovelace opposes the entry of such an
order . ( See Pl. ’ s Opp. , ECF No. 31.) For th e re asons stated below, the Court will grant
defendant ’ s motion in part

. FACTUAL BACKGROUND
Plaintiff Lisa Lovelace was admitted to MWHC ’ s burn intensive care un it o n January 2 5 , 2016, after she was identified as presenting wi th symptoms of Steph ens
- John son Syndrome.2

( See Compl. ¶

¶ 15, 16, ECF No. 1 .) She a lleges that “ [w]hile she was being treated at the burn
IC U, Defendant ’ s employees failed to properly treat [her] eyes, resulting in her total blindness. ” ( See Pl. ’ s Opp. at 1

. ) Lovelace bro ught th is action against MWHC on April 22, 2019 , with
claims of medical negligence ; neglig ent hir ing, training, supervisi on , and retention ; and lack of
informed consent

. ( See Compl. ) She alleges that she is entitled to damages of at least $10,000,000. ( See id. ) On May 12, 2020, the parties filed a joint status report requesting th e Court ’ s assistance
with a discovery dispute. ( See Joint Status Report, ECF No. 29. ) Defendant identified approximately 36 treating physicians , as well as rehabil itative counselors, who “ are believed to have personal information that is calculated to lead to the discovery of admissible evidence

. ” ( See id. at 2.) Because of the large number of treating physicians, many of whom are beyon d the
C o urt ’ s subpoe na power , defendant seeks to contact them ex parte , r ather than engage in formal discovery. Pl aintiff object s , ar guing that allowing defendant to make su ch contact would be destructive of the patient/physician relations hip and possibly lead to in timidation of her healthcare providers, and that defendant ha s not shown good cause why it i s necessar y. After a
conference call with counsel , the Court ordered additional briefing . ( See ECF No. 30, 31.)
ANALYSIS Federal regulations implementing t he Health Insurance Portability and Accountability Act of 1996 ( “ HIPAA ” ) provide that a pa tie nt ’ s protected health information may be disclosed

“ in the course of any judicial or administrative proceeding

. . . [i] n response t o an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health
infor mation expressly authorized by such order

. ” See 45 C.F.R. § 164.512 (e) (1). In Street v. Hed g epath , 607 A.2d 1238 (D.C. App. 1992) , the District of Columbia Court of Appeals stated3

that “ ex parte interviews with a treating physician are a permissible means of informal discovery
wh en the plaintiff has put the medical condition of that physician ’ s patient at issue by filing a
lawsuit

. ” Id. at 1 247. While Street was decided pre

- HIP AA, multiple judge s in the Superior Court, see , e.g., Chatman v. Pe arson , No. 2016

- CA

- 00 5909 M (JAD) (D.C. Super. Apr. 21,
2017 ) , as well as Judge Kollar

- Kot elly of thi s C ourt, concluded that it still reflect s District of
Columbia law that ex p arte interviews are gener ally permissible in medical negligen ce cases
. See Lo vecchio v. Washington Metr o
. Area Transit Auth. , 319 F. Supp. 3d 262, 264 (D.D.C. 2018)

. Therefore, she held that “ no authority prohibits Plaintiff ’ s medical provid ers from disclosing Plaintiff ’ s protected health information during ex parte interviews if this Court permits Defendant to conduct such interviews and issues a protective order delineating the scope of such
disclosure , ” thus satisfying HIPAA. Id. (emphas is in or iginal )

. Judge Kollar

- Kotelly went on to note that although ex parte interviews are allowed under District of Columbia and federal law, “ [t] he Court is unaware of any case law or HIPAA provision establishing that Defendant is entitled to conduct ex parte interviews. ” See id. (emphasis in original). While there is no generally

- accepted standard by which to analyze these motions, she determined that the “ good cause ” standard from Feder al Rule of Civil Procedure 26 would be appropriate. S ee id. at 26 5. In Lovecchio , “ good cause ” was found due to, inter alia , the plaintiff ’ s large number of treating physicians, no non

- speculative concerns of intim idation by defendants if they were allowed ex parte int e rviews, and “ Defendant ’ s desire to test its legal
theori es throug h ex parte interviews

. ” See id. at 265

- 66. As the D.C. Court of Appeals stated in
Street , “ no party to litigation has anything resembling a proprietary right to any witness ’ s evidence

. ” 607 A.2d at 1247 (quoting D o e v. Ely Lilly & Co., Inc. , 99 F.R.D. 126, 128 (D .D.C. 1983)).4

The Court disc erns no differen ce between this case and Lovecchio

. Like th e plaintiff in that case, Lovelace has been treated by num erous physicians since the incident about which she

sues , meaning that the “ efficiency ga ins of ex parte interviews in this case are

. . . substantial. ”
Lovecchio , 319 F . S u pp. 3d at 265. Also, there are several physicians who are located in
Baltimor e and Boston and are thus beyond the Court ’ s subpoena power
. And wh ile Lovelace argues that , unlike the plaintiff in Lovecchio , she has identified three of her subsequent treaters
as those she intends to call as witn esses, the C ourt sees no reason why this should limit the

treat ers w ith whom defendant may speak

. ( See Def. ’ s Mem. of Law at 6 ( “ Such an argument ignores the fact that these health care providers could have information about causation or
dam ages importan t to the de fense of the case apart from whatever purpose for which Plaintiff intends to call three of them as witnesses during trial. ” ).) Also like Lovecchio , while plaintiff
claims that ex parte interviews with de fe ndant may lead to intimidation of her h ealthcare providers or other untoward con duct ( see Joint Status Report at 12

- 13), this “ s eem [s] little more than speculation

. ” Lovecchio , 319 F . Supp. 3d at 265.
Th e Court is aw are of other decisions in this district concluding that such reasons are
ins ufficient to grant a defendant ex parte acces s to a plaintiff ’ s physicians. 1 ( See Joint Status Report at 5

- 6 (collecting cases) .) This Court , s itting in a diversity action, is guided by the D.C. Court of Appeals ’ decision in Street , which admonished that “ no party to litigation has anything resembling a proprietary rig ht to any witness ’ s evidence , ” Street , 607 A.2d at 1247 (internal
qu otation marks omitted), and therefore def endant ma y conduct ex parte interviews with plaintiff ’ s treating physicians in complian ce with the requirements set down below.

1 A number of these cases cite to Maryland case law to support their decisions. See , e.g. , Bi gelow v. Washin gton Hosp. Ctr. , No. 10

- cv
- 1461 (RLW) (D.D.C. Jan . 17, 2012) (citing as support Jeffares v. Kheiri , No. L

- 07

- 1923 (BEL) (D. Md. Nov. 19, 2008) ).5 CONCLUSION Upon consideration of the memorand a of law submitted by the parties, and for the
reasons stated above , it is hereby : ORDERED that MW HC ’ s Request for Q u alified Protective Order shall be GRANTED
IN PART ; it is further
ORDERED that the at torneys for MWHC shall be permitted to engage in ex parte
d iscussions with only those healthcare providers of p laintiff Lisa Lovelace listed hereinafter , provided that such communications pertain t o medical information as to which plaintiff has waived health care provider

- patient privilege by filing the instant suit

— that is, information
relevant to the causes , treatment, extent, and consequences of the injuries for which the plaintiff
here seeks com pensation from the defendant

. This Order neither broadens nor restricts any part y ’ s ability t o c onduct discovery p ursuant to the Federal Rules of Civil Procedure , the sole purpose hereof being to permit compliance with HIP AA. The parties are free to seek amend ment or modification of this Order as circumstances may di ctate. Nothing in this Order sh all be deem ed to relieve any party or attorney of the requirements
of the Federal Rules of Civil Procedure. Nothing in this Orde r permits disclosure of confidential communications, made for the purpose of diagnosis or treatment of a p at ient ’ s mental or

em otional con dition, including alc ohol or drug addition , among the patient ’ s psychotherapist, and persons wh o are participatin g in the diagnosis or treatment under the direction of the psychotherap i s t , including members of the patie nt ’ s family, nor does this Order perm it disclosure of records or information relating to HIV testing or sexually transmitted d isease, except as such communications may pertain to specific allegations or claims being asserted in this case.6

Nothing in this Order shall be cons trued t o authorize any party or any attorney for any part y to release, exchange, submit, or shar e any Protected Health Information with any other person or any other entity , other than an agent or employee of the attorney or party. T h is Order prohibits the partie s from usin g or disclosing the P rotected Health Information for any purpose other than this litigation or proceeding. At the conclusion of this action and at the written request of a person who se Protected Health Information has been disclosed, or such pe rson ’ s auth orized representative, all recipients
of the Prote ct ed Health Information sh all return to the r equesting party the documents and all copies thereof containing Protected Health Information received by them pursuant to this Order, except that Prot ect ed Healt h Information, which is included in insurance claims files and law firm litigation files , may be retained to allow comp liance to the extent and for the perio d that such retention is required by District of Columbia insurance laws and Dis t rict of Columbia B ar rules and regulations; it is further
ORDERED , that without a subpoe na, health care providers who tr eated plaintiff Lisa
Lovelace shal l be permitted , but not compelled, to disclose in discussions with the attorneys for defendant, outside the presen ce of plaintiff ’ s attorneys and without prior authorization from plaintiff or her counsel, Protected Health Information of plaintiff th at f alls within the scope of
this Order , which is intended to authorize such disc losures under the privacy re gulati ons issued pursuant to HIPAA , see 45 C.F.R. § 164.512 (e) (1) ; it is further
ORDERED , that any such discussion may include an attorney representing defendant and, if the medical provider so chooses, an a ttorney representing the health care provid er or staf f

mem ber. T he medical providers are also free to r equest that Plaintiff or her attorn e y be present at any interview ; i t is furthe r7

ORDERED , that M WHC ’ s attorneys shall provided the attached Authorization to
Release Medical Information to any of plaintiff ’ s he alth care providers they approach f or informal discovery p urposes. This Aut horization informs the phys icians that they are neither

r equired nor barred from provid ing information to defendant ’ s attorneys and that t hey are free to
consult with an a ttor ney r e garding this matt er and to have an attorney or staff me m ber(s) present during any communications with M WHC ’ s attorneys ; it i s further
ORDERED , that counsel for defendant may engage in ex parte contact pursuant to this Order with the following treati ng he alth car e providers of plaintiff Lisa Lovelace: Christina Rapp Prescott, M.D., Ph .D.; Esen K . Akp ek, M.D.; Allen O. Eghrari, M.D.; Farhan M erali, M.D.; Susan Huang, M.D.; Un Simch a Soiberman, M.D.; John Gottsch, M.D. ; Fausto Rod riguez, M.D.; M. S aheed, M.D.; K. Balhara, M.D. ; Victoria Hamil ton ; John B. Miller, M.D.; Reb ecca Mamo, M.D.; C. Stephen Foster, M.D. ; Shannath Lou ise, M.D.; Mary Oiu, M.D.; Peter Chang, M.D.; Thomas V. Johnson, III, M.D.; Olivia Claudia D ryiski, M.D.; Prade ep Ra mulu, M.D.; Miche lle M. Hessen, OD; Pradeep Yammanuru, M.D.; Daniel Sarezky, M.D.; Shannath Merbs, M.D., Ph .D; Aakr iti Garg, M. D.; Mary Matthews, M.D.; Jo aquin O. deRoja s, M.D.; Ro xana Fox, M.D.; Robert Weinberg, M.D.; Kathleen Lee, M.D.;8

Szen Karakus, M.D.; Priya M. Matth ews, M.D.; Jacqueline Weber, M. D.; Salaam Sadi, M.D.; Laura S. Kueny, M.D.; Rod ri guez Agramonte, M.D.; Maxwell Hel fgott, M.D.; Nisha Patel, M.D. ; and it is further ORDERED that defendant ’ s attorney shall inform plain tiff ’ s attorney of the names of
each of plaintiff ’ s treating physicians with whom he has spoken.
SO ORDERED.

_______________________ ELLEN S

. HUVELLE United States District Judge

Dat e: June 2, 20209 A UTHORIZATION TO REL EASE MEDICAL INFORMATIO N
In a c ase currently before Judge Ell en Segal Huvelle of the United States District Court for the District of Columbia, p laintiff Lisa Lovelace has filed suit assertin g that the treatment she
received from January 25 to February 25, 2016, at the burn int ensive care unit at defendant Washington Hospital Center Corporation, d/b/a MedStar W ashington Hospital Center , for Stephens

- Johnson syndrome was negligent and resulted in her total blindness. The defendant has petitioned the C ourt for permission to speak informally with plaintiff ’ s heal th care pro v iders who
treated her after this incident . As one of plaintiff ’ s current or former treating health care providers, you are hereby authorized to speak with defendant ’ s attorney s if you wish. If you choose to sp eak with defendant ’ s attorneys, you may discl os e to them any of plaintiff ’ s medical i nformation that could be relevant to the causes, treat ment, extent, and consequences of the injuries suffered by plaintiff. You may not disclose medical information
that is not rele vant to these in juries. You may n ot disclose records or information relating to HIV or AIDS testing or to sexually transmitted diseases. The decision of whether to speak with defendant ’ s attorneys is yours alone, and it would be inappr opriate for either party to attempt to influence you r decision. If you so d esire, you are free to consult with an attorney regarding this matter, and you may have any attorney or member(s) of your staff present for any discussion with defe ndant ’ s attorneys f you wish. If you
so d esire, you are also free t o i n vite plaintiff and /or plaintiff ’ s attorney to be present. It would, however, be inap propriate for p laintiff and/or plaintiff ’ s attorney to in sist or e ven suggest that they be present. That decision is also entirely up to you. You should be aw are that the Court has

o rdered defendant ’ s counsel to inform plaintiff ’ s counsel if you hav e spoken to defendant ’ s counsel

.10

So order ed, this 2 nd of June, 2020

.

_______________________ ELLEN S

. HUVELLE United States District Judge