RENDERED: JUNE 11, 2015 

TO BE PUBLISHED 

oSuprrittr ntfuritg 

2014-SC-000390-MR 

STACEY CALDWELL APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2014-CA-000456-OA 

JEFFERSON CIRCUIT COURT NO. 09-CI-007369 

HONORABLE A. C. McKAY CHAUVIN, 

JUDGE, JEFFERSON CIRCUIT COURT APPELLEE 

AND 

DR. FRANK P. CASTRO, 

D/B/A PALO ALTO SPINE, LLC REAL PARTY IN INTEREST 

OPINION OF THE COURT BY CHIEF JUSTICE MINTON 

AFFIRMING 

Litigants have historically been permitted to conduct ex partel interviews 

with fact witnesses. These interviews serve various purposes but are mainly 

1The law often attaches a negative connotation to communications labeled as 

ex parte. See BLACK'S LAW DICTIONARY 597 (7th ed. 1999) ("ex parte communication: A 

generally prohibited communication between counsel and the court when opposing 

counsel is not present."). Our use of the phrase ex parte throughout this opinion is 

devoid of those implications contrived from clandestine—and impermissible—

communications between an attorney and a judge or a party known to be represented 

by counsel. Instead, we use this phrase in a manner that is true to the basic 

definition of the Latin phrase, "from or on behalf of one side of the lawsuit," to refer to 

a meeting between counsel and a fact witness without prior notification to opposing 

counsel and the court. BRYAN A. GARNER, GARNER'S DICTIONARY OF MODERN LEGAL 

USAGE 343 (3d ed. 2011). Other jurisdictions, as well as the parties and amici 

presently before us, have routinely referred to these interactions as ex parte without 

invoking the level of impropriety ordinarily associated with ex parte communications. 

We do the same. 
directed at investigating the facts of the case and curtailing litigation costs by 

allowing litigants to gauge the usefulness of a witness's potential testimony by 

interviewing the witness before paying for a discovery deposition. 

Whether this time-honored method of informal discovery extends to the 

plaintiff's treating physicians and what role the federal Health Insurance 

Portability and Accountability Act of 1996 (HIPAA) plays in regulating these 

interviews has been an issue across the country for some time. And the issue 

has come before many of Kentucky's circuit courts , and the federal courts in 

both the Western and Eastern Districts of Kentucky. Today we decide 

conclusively whether litigants in Kentucky may, and under what conditions, 

engage in ex parte interviews with treating physicians. 

In an original action before the Court of Appeals, Stacey Caldwell, the 

plaintiff in the underlying medical-malpractice action, sought a writ of 

prohibition preventing the trial court from enforcing its order permitting 

counsel for Dr. Frank Castro, 2the defendant in the underlying action, to 

contact Caldwell's treating physicians ex parte. Importantly, no provision in 

the trial court's order compelled any physician to have contact with Castro's 

counsel or disclose any information, nor did it authorize disclosure of protected 

health information; whether or not to disclose any information was left to the 

treating physician's discretion. Before the Court of Appeals, Caldwell argued 

that because she was entitled to confidentiality in her communications with 

2Dr. Castro practices for Palo Alto Spine, LLC. 

2 
her healthcare providers, the trial court's order permitting ex parte contact 

with those providers was in error. 

The Court of Appeals declined to issue a writ because it found Caldwell 

did not have a right to confidentiality in her communications with her treating 

physicians. As a result, the Court of Appeals concluded the trial court's order 

was not erroneous. 

Based on our review of Kentucky and federal law, we conclude that no 

law inhibits litigants from seeking ex parte interviews with the opposing party's 

treating physicians. But the disclosure of medical information during those 

ex parte meetings is controlled by HIPAA. For disclosure to be permitted, the 

party must 'first obtain a court order authorizing disclosure in a voluntary 

ex parte interview. Upon review of the instant order, it is clear the trial court 

declined to authorize ex parte disclosure of Caldwell's health information thus 

failing to satisfy HIPAA. But because the trial court is explicit in its refusal to 

authorize ex parte disclosures, we find it unnecessary to issue an extraordinary 

writ. 

I. FACTUAL AND PROCEDURAL HISTORY. 

The underlying litigation stems from a discectomy Castro performed on 

Caldwell. Caldwell had a long history of spinal problems predating the 

procedure, but she alleges the surgery was unnecessary and negligently 

performed. Caldwell claims she suffered painful nerve damage and restricted 

mobility because of this surgery. 

3 
During the course of discovery and after obtaining Caldwell's medical 

records, Castro moved the trial court to enter a qualified protective order 

permitting him to make ex parte contacts with Caldwell's healthcare providers. 

Following a hearing, the trial court concluded there is no bar prohibiting 

Castro's counsel from contacting ex parte Caldwell's healthcare providers 

because they are ultimately fact witnesses and the information they possess is 

not subject to an evidentiary privilege. The trial court's order 3limited the 

scope of Castro's counsel's permissible ex parte contacts to those physicians 

who treated Caldwell "for the injuries that are the subject matter of this 

litigation" but expressly declined to authorize disclosure of Caldwell's health 

information. The court's order also explicitly stated it was neither requiring 

any physician to speak with Castro nor compelling disclosure of any 

information to Castro, noting the "treating physicians are free to accept or 

decline counsel's request as they see fit." 

Caldwell filed a petition for a writ of prohibition and a motion for 

intermediate relief' with the Court of Appeals. In her petition, Caldwell argued, 

as she does now, she was entitled to a writ because the trial court's order 

violated the physician-patient privilege, her right to confidentiality in her 

communications with her doctors, and the order was not authorized by federal 

3The court's order, although entitled "Qualified Protective Order," is nothing of 

the sort. The order does not mandate any disclosure and does not require any 

protective measures to ensure the confidentiality of information discovered pursuant 

to the order. Although it is a qualified protective order in name, the trial court's order 

also fails to satisfy HIPAA's requirements for qualified protective orders as outlined in 

45 C.F.R. 164.512(e)(1)(v). 

4 See Kentucky Rules of Civil Procedure (CR) 76.36(4). 

4 
law. The Court of Appeals denied her motion for intermediate relief without 

discussion. It also omitted analysis of the writ prerequisites and proceeded 

directly to the merits of her allegation of error. 

Upon reaching the merits, the Court of Appeals declined to issue a writ 

and presented two main reasons for so holding. First, it concluded no 

Kentucky law prohibits the trial court from authorizing ex parte 

correspondence with nonexpert treating physicians. And second, the Court of 

Appeals reasoned the trial court's order did not violate any right Caldwell may 

have to privacy of her medical information because the order does not compel 

any disclosure.. The court declined to address the impact of HIPAA's privacy 

regulations on Castro's ability to communicate ex parte with Caldwell's 

physicians, deciding "the order of the trial court relied solely upon Kentucky 

authority." 

Caldwell appeals that denial to this Court as a matter of right. 5 

II. ANALYSIS. 

The issuance of a writ is an extraordinary remedy that is disfavored by 

our jurisprudence. 6We are, therefore, "cautious and conservative both in 

entertaining petitions for and in granting such relief." 7 

5CR 76.36(7)(a) ("An appeal may be taken to the Supreme Court as a matter of 

right from a judgment or final order in any proceeding originating in the Court of 

Appeals."); see also Ky. Const. § 115 ("In all cases, civil and criminal, there shall be 

allowed as a matter of right at least one appeal to another court . . . ."). 

6 Ridgeway Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 

2013). 

7 Bender v. Eaton, 343 S.W.2d 799, 800 (Ky. 1961). 

5 
A writ of prohibition may be granted upon a showing that (1) the 

lower court is proceeding or is about to proceed outside of its 

jurisdiction and there is no remedy through an application to an 

intermediate court; or (2) that the lower court is acting or is about 

to act erroneously, although within its jurisdiction, and there 

exists no adequate remedy by appeal or otherwise and great 

injustice and irreparable injury will result if the petition is not 

granted. 8 

Caldwell makes no proper argument that the trial court was without 

jurisdiction to enter the challenged discovery order. 9She seeks the second 

class of writ. And when seeking a writ of the second class, a petitioner must 

first show she has no adequate remedy by appeal or otherwise. If this 

requirement can be met, the petitioner must then show she will suffer great 

injustice or irreparable harm absent the issuance of a writ. This has 

consistently been defined as injury of a "ruinous nature." 19 

The latter requirement is not absolute, however. In what has come to be 

known as the "certain-special-cases exception," our precedent allows waiver of 

the great injustice and irreparable harm element in cases where the instant 

harm may not rise to the level of irreparable but a "substantial miscarriage of 

justice will result if the lower court is proceeding erroneously, and correction of 

8 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004). 

9Caldwell made a passing allegation that the trial court was acting outside its 

jurisdiction in entering the allegedly erroneous discovery order. This argument is 

presented for the first time in a footnote in Caldwell's reply brief. Aside from the 

absurdity of arguing that a trial court lacks jurisdiction to enter a discovery order in a 

pending civil case, Kentucky courts have declined to entertain arguments so 

introduced. See Smith v. Commonwealth, 366 S.W.3d 399, 401 (Ky. 2012) (quoting 

Milby v. Mears, 580 S.W.2d 724, 728 (Ky.App. 1979) ("[T]he reply brief is not a device 

for raising new issues . . . .")). Because this issue is not properly before us, we make 

no further mention of it. 

19 Bender, 343 S.W.2d at 801. 

6 
the error is necessary and appropriate in the interest of orderly judicial 

administration." 11 

Proof of the elements described above is a condition precedent to 

contemplation of the merits underlying a writ petition. Strict adherence to 

these prerequisites "is a practical and convenient formula for determining, prior 

to deciding the issue of alleged error, if petitioner may avail himself of this 

remedy." 12These strictures evince a reluctance to reach the merits of alleged 

errors in writ proceedings. Indeed, the test that must be satisfied before the 

Court may analyze the alleged error was designed expressly to limit "the 

number of writ cases that proceed to the merits of the controversy" 13because 

writ proceedings "necessitate an abbreviated record which magnifies the 

chance of incorrect rulings that would prematurely and improperly cut off the 

rights of litigants." 14It bears repeating that the issuance of a writ is inherently 

discretionary. Even if the requirements are met and error found, the grant of a 

writ remains within the sole discretion of the Court.' 5 

Because of the discretion inherent in granting a writ, we review the 

decision of the Court of Appeals for an abuse of discretion. When questions of 

law or findings of fact made by the Court of Appeals en route to their ultimate 

decision are raised, however, we review de novo and for clear error, 

11 Id. 

12 Id. 

13 Cox v. Braden, 266 S.W.3d 792, 796 (Ky. 2008). 

14 Interactive Media Entm't & Gaming Ass'n v. Wingate, 320 S.W.3d 692, 695 

(Ky. 2010) (internal quotation marks omitted). 

15 Edwards v. Hickman, 237 S.W.3d 183, 189 (Ky. 2007). 

7 
respectively. The Court of Appeals in the present case has omitted analysis of 

the writ prerequisites in its opinion denying Caldwell's petition for a writ, 

opting instead to proceed directly to the merits. 16So we review the availability 

of the writ remedy de novo. 

Caldwell's argument in favor of her entitlement to an extraordinary writ 

is grounded in state-law principles. She claims the trial court's order 

permitting Castro's counsel to communicate ex parte with her treating 

physicians was error because: communications with treating physicians are, 

or should be, treated as privileged; the American Medical Association's Code of 

Medical Ethics carries the force of law in prohibiting nonconsented disclosure 

of confidential information; Kentucky case law prohibits trial courts from 

authorizing defendant's counsel to communicate with a plaintiff's treating 

physicians ex parte; and the trial court's order is "confusing and misleading." 

Caldwell also argues, at least initially, that HIPAA does not create an 

entitlement to ex parte contacts for defendants. It is not until the last page of 

her reply brief that Caldwell makes a one-paragraph argument that HIPAA 

prohibits the ex parte meetings she seeks a writ to prevent. The amicus on her 

behalf, the Kentucky Justice Association, took up the HIPAA argument and 

presented us with a comprehensive argument explaining why, in its view, the 

trial court's order violates HIPAA. Castro, of course, refutes Caldwell's 

16It is worth noting that this practice has support in our writ jurisprudence. 

Our precedent authorizes proceeding directly to the merits of a dispute when they are 

uncomplicated and doing so would promote the end of "judicial economy in limiting 

the breadth of analysis appellate courts undertake when considering writs." So. Fin. 

Life Ins. Co. v. Combs, 413 S.W.3d 921, 927 n.20 (Ky. 2013). The Court of Appeals 

used that approach, but we choose the more traditional analytical approach. 

8 
allegations of error; and although he presents a capable argument regarding 

HIPAA's impact on ex parte communications with nonparty treating physicians, 

Kentucky Defense Counsel, Inc., supplied an amicus brief buttressing Castro's 

cause regarding HIPAA. 

We have often held discovery disputes satisfy the no-adequate-remedyby-appeal requirement. Cases so holding often focus on the inability of 

information disclosed under an erroneous discovery order to be recalled. 17In 

those cases, "Nile injury suffered . . . will be complete upon compliance with 

the order and such injury could not thereafter be rectified in subsequent 

proceedings in the case." 18 

This case is no different. Although Caldwell's main objection is with the 

form of discovery permitted by the trial court's order, the gravamen of her 

complaint is that through ex parte discovery—which, by definition, takes place 

beyond the watchful eye of opposing counsel or the court—confidential or 

otherwise undiscoverable information, or information protected by federal law, 

may be disclosed without Caldwell's consent and to her detriment. If that were 

to happen—and we must presume it will happen when assessing the 

17 See, e.g., Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004) 

("[T]here will rarely be an adequate remedy on appeal if the alleged error is an order 

that allows discovery."); Bender, 343 S.W.2d at 802. 

18 Bender, 343 S.W.2d at 802. 

9 
availability of the writ remedy 19—Caldwell would be left without an avenue of 

appellate recourse to rectify her grievance. 20 

We also find this issue to satisfy the certain-special-cases exception 

because its resolution is necessary to ensure the orderly administration of 

justice in the Commonwealth. This exception has been reserved for "firstimpression questions[] bearing importantly on the public administration of the 

law or on a party's fundamental rights." 21We find this to be a case of the 

former and conclude it is particularly suited to application of this exception 

because of the unique procedural posture in which this issue typically will 

arise. 

This case presents our appellate courts with their first opportunity to 

address this issue, 22even though the bulk of HIPAA's privacy regulations were 

19 See Commonwealth, Cabinet for Health and Family Servs. v. Chauvin, 

316 S.W.3d 279, 283 (Ky. 2010) ("In applying this threshold test, the petitioner's 

allegations are assumed to be true."). 

20 See Bender, 343 S.W.2d at 802 ("Once the information is furnished it cannot 

be recalled."); Young v. Carran, 289 S.W.3d 586, 588 (Ky.App. 2008) ("This court has 

recently held that HIPAA does not create a state-based private cause of action for 

violations of its provisions. We also note that federal courts have uniformly held that 

HIPAA does not create a private cause of action even at the federal level.") (citations 

omitted). 

We except from this conclusion Caldwell's argument citing the "confusing 

and misleading" nature of the challenged order. Caldwell did have an adequate 

remedy available to rectify this issue. As the Court of Appeals recognized, "a motion 

for clarification in the trial court was an available and adequate remedy that precludes 

extraordinary relief." We agree with the Court of Appeals and conclude that a writ is 

not available to Caldwell on those grounds. 

21 Inverultra, S.A. v. Wilson, 449 S.W.3d 339, 349 (Ky. 2014). 

22A similar claim was raised before, but the Court of Appeals concluded that 

the plaintiff's allegation "that [her treating physician's] ex parte conversations with [the 

defendant] were violations of both HIPAA and the Kentucky Rules of Medical Ethics" 

was not timely raised. See Miller v. Jewish Hosp. Healthcare Servs., Inc., 2004-CA10 
promulgated nearly fifteen years ago. 23Our inability to address this issue 

before today notwithstanding, it has been percolating through state courts, 24 

federal district courts, 25and academic circles 26for a decade. And the issue has 

arisen in the trial courts of the Commonwealth. The parties have provided 

citation to Kentucky courts that have struggled to address this exact issue in 

discovery orders. 

Discovery disputes, as a general matter, come before this Court nearly 

always via writ petitions. The very nature of informal discovery is likely to 

increase this trend because restrictions on ex parte communications are even 

less likely to be challenged on appeal once final judgment is reached. It stands 

to reason that the only manner in which this issue may reach this Court is 

through a writ petition. We find it necessary, therefore, to reach the merits of 

this issue to ensure that the decisions of our trial courts concerning ex parte 

contacts with treating physicians comport with Kentucky and federal law; 27 

001832-MR, 2005 WL 2469688 (Ky.App. Oct. 7, 2005). This Court denied 

discretionary review. 

23 See Standards for Privacy of Individually Identifiable Health Information, 

65 Fed.Reg. 82,462-01 (Dec. 28, 2000) (to be codified at 45 C.F.R. pts. 160 & 164). 

24 See, e.g., State ex rel. Proctor v. Messina, 320 S.W.3d 145 (Mo. 2010) 

(en banc); Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007). 

25 See, e.g., Bayne v. Provost, 359 F.Supp.2d 234 (N.D.N.Y 2005); Nat'l Abortion 

Fed'n v. Ashcroft, 2004 WL 292079 (N.D. Ill. Feb 6, 2004). 

26 See, e.g., Joseph Regalia & V. Andrew Cass, Navigating the Law of Defense 

Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP. HEALTH L. & POL'Y 

35 (2015); Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten 

Off More Than it Can Chew By Prohibiting Ex parte Communication With Treating 

Physicians?, 75 UMKC L.Rev. 499, 500 (2006). 

27 To be sure, this is not to imply that writ petitions will satisfy the certainspecial-cases exception simply because they concern a discovery matter. To the 

contrary, most discovery disputes concern the application of settled principles of law 

11 
otherwise, those decisions may continue to evade appellate review. Caldwell's 

instant petition presents a claim for which a writ is an appropriate remedy at 

this Court's discretion pending an analysis of the merits. 28 

1 

Turning to the merits of Caldwell's writ petition, we will first 'address 

HIPAA's impact because, as we discuss below, the HIPAA analysis necessarily 

subsumes the state-law arguments championed by Caldwell. 

A. HIPAA Does not Prohibit Ex Parte Interviews with Treating Physicians, 

but it Does Regulate the Protected Health Information to be Disclosed 

in Ex Parte Interviews. 

Congress enacted HIPAA with the primary purpose of making health 

insurance more "portable" to prevent the denial of insurance coverage for 

preexisting conditions when employees change jobs and, in so doing, change 

health-insurance providers. 29As part of HIPAA's expansive reform, Congress 

charged the Secretary of the United States Department of Health and Human 

Services (HHS) with promulgating regulations "with respect to the privacy of 

individually identifiable health information" if Congress had not done so three 

years after HIPAA's enactment. 39When Congress failed to act, HHS adopted, 

at the discretion of capable trial judges. This case is distinguished from run-of-themill discovery writs because if we decline to reach the merits of this issue, trial courts 

will be left with no precedential guidance going forward. 

28 See Commonwealth v. Peters, 353 S.W.3d 592, 596 (Ky. 2011) (concluding the 

special-cases exception applied where "the issue in the present case has far-reaching 

implications regarding pretrial procedure in the Commonwealth"). 

29 See Arons, 880 N.E.2d at 839-40 ("Congress enacted HIPAA principally to 

increase the portability and continuity of health insurance and to simplify 

administrative procedures so as to reduce health care costs."). 

3°Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub.L. 

No. 104-191, § 264(c)(1), 110 Stat. 1936, 2033-34. 

12 
after notice and public comment, privacy regulations ensuring patients' privacy 

as medical records began their move to storage in a digital format. 31 

The cornerstone of HIPAA's privacy rule presents a broad prohibition on 

the disclosure of medical information, providing that "[a] covered entity or 

business associate may not use or disclose protected health information, 

except as permitted or required by this subpart." 32A covered entity is defined 

to include health plans; health care clearinghouses; and health care providers, 

such as physicians and hospitals. 33 Protected health information includes, with 

exceptions irrelevant here, "individually identifiable health information" 

transmitted or maintained in whatever form or medium. 34 Health information 

includes information "whether oral or recorded in any form or medium" that 

pertains to the physical health of an individual. 35 

HIPAA provides for mandatory disclosure of protected health information 

by a covered entity under only two circumstances: (1) upon a request by an 

individual for her own health information or (2) when requested by the 

Secretary of HHS to investigate HIPAA compliance. 36 Permissible uses and 

disclosures of protected health information are more numerous and reside in 

31See 65 Fed.Reg. 82,462-01 (codified at 45 C.F.R. pts. 160 86 164). 

3245 C.F.R. § 164.502(a). 

3345 C.F.R. § 160.103. 

34 Id. 

35 Id. 

36 45 C.F.R. § 164.502(a)(2). 

13 
45 C.F.R. 164.502(a)(1). 37Among the permissible disclosures authorized by 

HIPAA, is the "litigation exception," which permits disclosure of protected 

health information "in the course of any judicial or administrative proceeding" 

either "[i]n response to an order of a court of administrative tribunal" or "[i]n 

response to a subpoena, discovery request, or other lawful process," so long as 

additional safeguards are met. 38 

Noticeably absent from the sea of HIPAA privacy regulations is any 

mention of ex parte communications between counsel and a covered entity. 39 

In fact, the privacy rule does not purport explicitly to regulate the permissibility 

of ex parte communications or interviews as an informal discovery too1. 4° But 

the absence of express reference to ex parte interviews does not render HIPAA 

inapplicable to regulate such contacts. Because HIPAA, by its terms, applies to 

the oral disclosure of health information, it has routinely been held that the 

37 See 65 Fed.Reg. 82,462, 82,657 ("We note that nothing in the [privacy] rule 

requires covered entities to act on authorizations that they receive, even if those 

authorizations are valid. A covered entity presented with an authorization is permitted 

to make the disclosure authorized, but is not required to do so."). 

3845 C.F.R. § 164.512(e)(1)(i)-(ii). 

39 See Bayne, 359 F.Supp.2d at 240 ("Absent within the four corners of the 

relevant rules and regulations and the enabling statute is any mention of the ex parte 

interview of a health provider, such as whether to prescribe or proscribe such 

actions . . . ."). 

40 See Smith v. Am. Home Prods. Corp. Wyeth Ayerst Pharm., 855 A.2d 608, 622 

(N.J Super. 2003) ("Nowhere in HIPAA does the issue of ex parte interviews with 

treating physicians, as an informal discovery device, come into view. The court is 

aware of no intent by Congress to displace any specific state court rule, statue or case 

law . . . on ex parte interviews."); Joseph Regalia & V. Andrew Cass, Navigating the 

Law of Defense Counsel Ex parte Interviews of Treating Physicians, 31 J. CONTEMP. 

HEALTH L. 136 POL'Y at 48. ("[N]either the Act, nor its legislative history, expressly 

prohibits defense counsel ex parte interviews."). 

14 
disclosure of protected health information in ex parte interviews falls within the 

ambit of HIPAA. 41 

The divergence of judicial opinion focuses on what impact HIPAA and its 

litigation exception have on the continued viability of ex parte contacts with 

treating physicians. 42Some courts have concluded, and Caldwell and her 

amicus have argued, that the judicial exception is wholly inapplicable to 

informal ex parte discovery because its covert nature renders it outside "the 

course of any judicial or administrative proceeding," which is a prerequisite for 

disclosure under that section. The contrary analysis, promoted by Castro and 

his amicus, reasons that HIPAA does not prohibit ex parte interviews with 

treating physicians, it "merely superimposes procedural prerequisites" to 

authorize disclosure of protected health information. 

The leading case espousing the former position is State ex rel. Proctor v. 

Messina, decided by the Supreme Court of Missouri. 43In that case, the court 

narrowly defined the litigation exception's leading language: "in the course of a 

judicial . . . proceeding . "44As a result, the court concluded that disclosure 

41 See, e.g., Messina, 320 S.W.3d at 150 ("This federal regulation's use of the 

term oral communication clearly includes ex parte 'oral' communications with a 

physician . . . ."). 

42Scott Aripoli, Comment, Hungry Hungry HIPAA: Has The Regulation Bitten Off 

More Than it Can Chew By Prohibiting Ex parte Communication With Treating 

Physicians?, 75 UMKC L.Rev. at 500 ("Whether HIPAA truly does preclude defense 

attorneys from conducting ex parte interviews with treating physicians has yet to be 

concretely settled in jurisdictions that have traditionally allowed ex parte 

communications. . . . Unfortunately, no two jurisdictions seem to have found a 

uniform line of reasoning with regard to answering this question."). 

43320 S.W.3d 145 (2010) (en banc). 

44 Id. at 156. 

15 
under that exception "must be under the supervisory authority of the court 

either through discovery or through other formal court procedures." 45Because 

the Missouri Rules of Civil Procedure do not provide a mechanism for courts to 

oversee ex parte communications, the court held 45 C.F.R. § 164.512(e), which 

permits disclosures in the course of judicial proceedings, does not apply to a 

meeting for ex parte communications." 46 

The opposing viewpoint may be found in the Court of Appeals of New 

York's decision in Arons v. Jutkowitz. 47 The court in Arons concluded that "the 

Privacy Rule does not prevent this informal discovery from going forward, it 

merely superimposes procedural prerequisites." 48Those procedural 

prerequisites, the court explained, include satisfying one of the two prongs of 

the litigation exception in order to permit disclosure of protected health 

information by the covered entity. 49This reasoning has been adopted by the 

Supreme Court of Michigan, holding that ex parte interviews were permitted 

under HIPAA and disclosure of protected health information permitted so, long 

as the second prong of the litigation exception was satisfied by provision of 

"satisfactory assurance" that efforts have been made to obtain a qualified 

protective order. 50 

45 Id. 

46 Id. at 157. 

47880 N.E.2d 831 (N.Y. 2007). 

48 Id. at 842. 

49 id. 

so Holman. v. Rasak, 785 N.W.2d 98, 105-08 (Mich. 2010); 45 C.F.R. 

§ 164.512(1)(e)(ii)(B) ("A covered entity may disclose protected health information in 

16 
We find more persuasive the New York court's position. We do not define 

"in the course of any judicial . . . proceeding" as narrowly as the Messina court 

in light of the Secretary of HHS's commentary in the Federal Register 

pertaining to 45 C.F.R. § 164.512, which explains the Privacy Rule was "not 

intended to disrupt current practice whereby an individual who is a party to a 

proceeding and has put his or her medical condition at issue will not prevail 

without consenting to the production of his or her protected information." 5 i 

Viewing HIPAA's privacy regulations as "merely superimpos[ing] procedural 

prerequisites" over informal ex parte discovery is the most appropriate 

analytical approach. If a party satisfies the superimposed procedural 

prerequisites by fulfilling the litigation exception's requirement, the resulting 

ex parte contact has been drawn well within "the course of [the] judicial .. . 

proceeding' as required by HIPAA. 

Before moving on, it is worth taking a close look into the procedural 

prerequisites imposed by HIPAA. For an ex parte interview with a treating 

physician to comply with HIPAA, it must fall within the litigation exception. 

The text of this provision reads: 

(1) Permitted disclosures. A covered entity may disclose 

protected health information in the course of any judicial or 

administrative proceeding: 

the course of any judicial . . . proceeding: In response to a subpoena, discovery 

request, or other lawful process that is not accompanied by an order of a court or 

administrative tribunal, if: The covered entity receives satisfactory assurance . . . from 

the party seeking the information that reasonable efforts have been made by such 

party to secure a qualified protective order . . . ."). 

5165 Fed.Reg. 82,462, 82,530. 

17 
(i) In response to an order of a court or administrative 

tribunal, provided that the covered entity discloses 

only the protected health information expressly 

authorized by such order; or 

(ii) In response to a subpoena, discovery request, or other 

lawful process, that is not accompanied by an order of 

a court or administrative tribunal, if: 

(A) The covered entity receives satisfactory 

assurance, as described in paragraph (e)(1)(iii) of 

this section, from the party seeking the 

information that reasonable efforts have been 

made by such party to ensure that the 

individual who is the subject of the protected 

health information that has been requested has 

been given notice of the request; or 

(B) The covered entity receives satisfactory 

assurance, as described in paragraph (e)(1)(iv) of 

this section, from the party seeking the 

information that reasonable efforts have been 

made by such party to secure a qualified 

protective order that meets the requirements of 

paragraph (e)(1)(v) of this section. 52 

Where our analysis differs from that of the courts cited above comes in 

our definition of the emphasized language "or other lawful process." Both 

Arons and Holman defined this phrase broadly enough to encompass an 

ex parte interview and held that compliance with this second prong—providing 

"satisfactory assurance" that the subject of the protected health information 

was notified of the request or that a qualified protective order had been 

sought—was adequate to meet HIPAA's superimposed procedural prerequisites. 

We do not define lawful process so broadly. 

5245 C.F.R. § 164.512(e)(1)(i)-(ii) (emphasis added). 

18 
We typically define words according to their ordinary meanings when 

interpreting statutes, but that general rule yields when a word or phrase has a 

technical meaning within the law. 53And the latter is the case here. Black's 

Law Dictionary defines process as "[t]he proceedings in any action or 

prosecution," or a "summons or writ, esp. to appear or respond in court." 54 

process as defined above is also termed This entry concludes by noting the 

legal process. 

We find the second definition of process to be applicable here because its 

definition must be informed by the items that precede it. Defining lawful 

process as "a summons or writ, esp. to appear or respond in court" is in 

keeping with the general tenor of that section that also includes subpoenas and 

discovery requests. The common-sense definition of lawful process—any action 

that is not in violation of law—is too far-reaching when considering the balance 

of the provision. Applying this definition of lawful process, we are constrained 

to conclude that ex parte interviews do not fall within this strict definition of 

lawful process. Even though we have concluded that ex parte interviews are 

conducted within the course of a judicial proceeding, they are still decidedly 

informal and entirely voluntary, unbefitting of the designation of lawful process 

ascribed to formal discovery tools. Therefore, we hold that protected health 

53 St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 535 (Ky. 2011) (quoting 

Baker v. White, 65 S.W.2d 1022, 1024 (Ky. 1933) ("[I]n the interpretation and 

construction of statutes, words and phrases employed by the lawmaking body must be 

given their plain and ordinary meaning according to popular usage, unless they have 

acquired a technical sense, in which event, they will be given such accepted technical 

meaning."). 

54BLACK'S LAW DICTIONARY 1222 (7th ed.) 

19 
information may only be disclosed under HIPAA's litigation exception if the 

exception's first prong is satisfied by order of the trial court. 

This interpretation of the litigation exception is also consistent with our 

reliance on trial courts as gatekeepers of discovery 55—even informal discovery, 

when appropriate. Under our construction of the litigation exception, for the 

ex parte disclosure of protected health information to comport with HIPAA, a 

party must first seek authorization from the trial court. If we were to adopt the 

application of the litigation exception as contemplated in Arons, disclosure of 

protected health information would be permitted under HIPAA, yet, still within 

the discretion of treating physicians upon counsel's provision of "satisfactory 

assurance" that: "reasonable efforts" have been made to notify the subject of 

the protected health information of the request; or a qualifying protective order 

has been sought. 56 Notice need not have been achieved nor a qualified 

protective order obtained to satisfy the second prong of the litigation exception 

as construed by Arons—"sufficient assurance" of "reasonable efforts" to provide 

notice or merely seeking a qualified protective order would suffice. Indeed, 

Castro argues he has met this low standard by obtaining the order at issue, 

even though by its own terms the order withholds authorization for the 

disclosure of protected health information and does not meet the required 

55 Primm v. Isaac, 127 S.W.3d 630, 634 (Ky. 2004) ("Generally, control of 

discovery is a matter of judicial discretion."). 

5645 C.F.R. § 165.512(e)(1)(ii)(A)-(B); Arons, 880 N.E.2d at 842 ("As a practical 

matter, this means that the attorney who wishes to contact an adverse party's treating 

physician must first obtain a valid HIPAA authorization or a court of administrative 

order; or must issue a subpoena, discovery request or other lawful process with 

satisfactory assurances relating to either notification or a qualified protective order."). 

20 
protective standards outlined in 45 C.F.R. § 165.512(e)(1)(v). To interpret the 

litigation exception as allowing disclosure of protected health information 

under the second prong in contravention of an order declining to authorize 

disclosure under the first prong undercuts the discretion vested in trial courts. 

We conclude HIPAA does not prohibit ex parte interviews, but its 

strictures do regulate disclosure of protected health information during their 

course. We further hold HIPAA's procedural prerequisites to disclosure of 

protected health information may only be satisfied by order of a court or 

administrative tribunal 57because ex parte interviews do not come within the 

meaning of lawful process as used in 45 C.F.R. § 165.512(e)(1)(ii). 

But our analysis does not end here. HIPAA's privacy rule contains a 

preemption clause whereby any "contrary" provision of state law is preempted 

absent the application of an enumerated exception. 58State law is "contrary" to 

HIPAA "only if it would be impossible for a covered entity to comply with both 

the state requirement and the Rule, or the former is an obstacle to 

accomplishing the full purposes and objectives of HIPAA's 'administrative 

simplification' provisions." 59But if a "contrary" law requires a more stringent 

standard of privacy, HIPAA's preemption provisions are inapplicable and state 

law controls. So we must undertake an analysis of Kentucky law to determine 

what law controls the instant dispute. 

57 See 45 C.F.R. § 164.512(e)(1)(i). 

58 45 C.F.R. § 160.203 (pertaining to the preemptive effect of HIPAA's 

regulations). 

Arons, 880 N.E.2d at 841-42 (citing 45 C.F.R. § 160.202). 

21 
B. Kentucky Law Places no Restrictions on Voluntary Ex Parte Interviews 

with Nonexpert Treating Physicians. 

There is a dearth of Kentucky law dealing with litigants' ability to confer 

ex parte with nonparty fact witnesses. And the cases that do broach this topic 

do so upon the allegation that an ex parte contact was rendered impermissible 

only by way of some express rule. 60But what we can glean from those cases is 

that their analysis begins—without fail—with the presumption that ex parte 

contacts with willing fact witnesses are permissible absent express limitation. 

Although these contacts are not mentioned in our civil rules pertaining to 

discovery, 61those rules are not meant to be exhaustive and do not express any 

intent to foreclose the "time honored" 62tool of informal discovery that is the 

ex parte interview. 63Also, to disallow parties equal access to an effective and 

inexpensive method of establishing operative facts would conflict with the 

60 See, e.g., Shoney's, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994) (finding ex parte 

contacts between plaintiff's counsel and defendant's managerial employees to be 

impermissible only because of the application of Supreme Court Rule (SCR) 3.130-4.2 

prohibiting counsel to contact a party represented by counsel unless authorized to do 

so); Hilliard v. Commonwealth, 158 S.W.3d 758 (Ky. 2005) (holding use of subpoena 

power to compel a witness's appearance for an ex parte interview impermissible as on 

abuse of subpoena power, not because the ex parte contact itself was impermissible); 

see also Radford v. Lovelace, 212 S.W.3d 72, 82 (Ky. 2006) overruled on other grounds 

by Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009) ("It is important for us to 

remember that both sides have the right to interview witnesses before trial.") 

(quotation marks omitted). 

61 See CR 26-37.05. 

62Angela T. Burnette 8s D'Andrea J. Morning, HIPAA and Ex parte Interviews—

The Beginning of the End?, J. HEALTH & LIFE Sci. L. 73, 77 (April 2008). 

63 See Domako v. Rowe, 475 N.W.2d 30, 36 (Mich. 1991) ("The omission of 

[ex parte] interviews from the court rules does not mean that they are prohibited, 

because the rules are not meant to be exhaustive. Their absence from the court rules 

does indicate that they are not mandated and that the physician cannot be forced to 

comply, but there is nothing in the court rules precluding an interview if the physician 

chooses to cooperate.") (citation omitted). 

22 
purpose our civil rules were meant to serve. 64So we begin our analysis of 

Kentucky law as it pertains to ex parte communications with treating 

physicians by accepting the same premise impliedly accepted in our precedent 

and by the parties in the present case: voluntary ex parte contacts with fact 

witnesses, are a permissible form of informal discovery absent some limitation 

found outside our discovery rules. 

Caldwell argues such a limitation prohibiting ex parte communications 

with treating physicians may be derived from multiple sources of Kentucky law. 

She first alleges the existence of a physician-patient privilege operates to limit 

the viability of ex parte communications with treating physicians, or, 

alternatively, that these situations should be treated as if a privilege does exist. 

Next, she claims that the American Medical Association's Code of Medical 

Ethics, adopted by the Kentucky State . Board of Medical Licensure under its 

statutory authority, carries the force of law in prohibiting nonconsented 

disclosure of confidential information. Lastly, she argues that Kentucky case 

law prohibits defendants from contacting ex parte nonparty treating 

physicians. 

64 Naive v. Jones, 353 S.W.2d 365, 367 (Ky. 1961) ("The civil rules prescribe a 

practical pattern for the conduct of litigation and the effective administration of 

justice.") (emphasis added); Doe v. Eli Lilly & Co., Inc., 99 F.R.D. 126, 128 (D.D.C. 

1983) ("As a general proposition, however, no party to litigation has anything 

resembling a proprietary right to any witness's evidence."); see also Langdon v. 

Champion, 745 P.2d 1371, 1375 n.8 (Alaska 1987) ("[T]o disallow a viable, efficient, 

cost effective method of ascertaining the truth because of the mere possibility of 

abuse, smacks too much of throwing out the baby with the bath water."). 

23 
1. Kentucky Does not Recognize a Physician-Patient Privilege, and We 

Decline to Act as Though One Does Apply Here. 

Caldwell's first argument—that her communications with her physician 

are privileged and thereby protected from ex parte disclosure under Kentucky 

law—is disingenuous at best. This argument runs headlong into decades of 

precedent and ignores the unambiguous text of our rules of evidence pertaining 

to privilege. 65 

For better or worse, our jurisprudence has been unwavering in its 

rejection of the patient-physician privilege. 66We see no reason to engage in a 

lengthy analysis of this settled issue of law. All privileges, unless otherwise 

created by statute, 67are explicitly stated in our rules of evidence. The 

physician-patient privilege is conspicuously absent from those provisions. 68 

69We cannot And our common law did not recognize such a privilege.

articulate it more clearly than the late Justice Keller did in his concurrence in 

Stidham v. Clark, so we will not attempt to: "[NJ° testimonial privilege exists in 

65 KRE 501-11. 

66 See, e.g., Stidham v. Clark, 74 S.W.3d 719, 729 (Ky. 2002) (Keller, J., 

concurring); H.H. Waegner & Co. v. Moock, 197 S.W.2d 254, 256 (Ky. 1946); Boyd v. 

Winn, 150 S.W.2d 648, 650 (Ky. 1941); Louisville & N.R. Co. v. Crockett's Adm'x, 

24 S.W.2d 580, 583 (Ky. 1930). 

67 Commonwealth, Cabinet for Health and Family Servs., 316 S.W.3d at 284 

("Kentucky evidentiary rules recognize the ability of the legislature to control their 

contents, presumably including privileges, limited only by section 116 of the Kentucky 

Constitution."). 

68 See KRE 501-11. 

69 Boyd, 150 S.W.2d at 450 ("At common law neither the physician nor the 

patient could claim the privilege of refusing to disclose confidential communications 

between them in the course of the physician's attendance upon or treatment of the 

patient in a professional capacity."). 

24 
Kentucky for communications made between a patient and physician for the 

purpose of medical treatment." 70 

Having found no privilege to exist, Caldwell argues, in the alternative, 

that we should nonetheless treat her communications with her physicians as 

though they are privileged. We readily accept that the communications 

between a patient and her physician are sensitive in nature. That said, our 

court system has operated relatively smoothly since its inception without the 

privilege Caldwell seeks. We have heretofore not identified a cognizable right to 

a privilege in medical communications and again decline to do so today. 

It is high time litigants abandon this tired argument. Our disinclination 

to recognize a physician-patient privilege or to apply the faux privilege that 

Caldwell argues for in the alternative is well documented. Any change that will 

see a physician-patient privilege recognized in Kentucky will come by way, of a 

change to our rules of evidence or through the legislature's authority to create 

privileges recognized in Stidham. 

2. The American Medical Association's Code of Medical Ethics Does not 

Carry the Force of Law to Render Ex Parte Contacts with Physicians 

Impermissible. 

Caldwell next argues that the confidentiality provisions contained in the 

American Medical Association's Code of Medical Ethics guarantees her right to 

confidentiality because the Kentucky Board of Medical Licensure adopted the 

Code of conduct under authority granted by statute and also possesses 

statutory authority to levy punishment for ethical violations. 

70 Stidham, 74 S.W.3d at 729 (Keller, J., concurring). 

25 
The Kentucky Board of Medical Licensure is granted statutory authority 

to "promulgate a code of conduct governing the practice of medicine and 

osteopathy, which shall be based upon generally recognized principles of 

professional conduct." 71The Board is also statutorily afforded the concomitant 

authority to discipline practitioners within its purview for ethical violations. 72 

To satisfy its statutory grant of authority, the Board adopted the 

AMA Code of Medical Ethics. The provision of the Code relevant to the instant 

proceedings reads: 

Confidentiality. The information disclosed to a physician during 

the course of the relationship between physician and patient is 

confidential to the greatest possible degree. The patient should feel 

free to make a full disclosure of information to the physician in 

order that the physician may most effectively provide needed 

services. The patient should be able to make this disclosure with 

the knowledge that the physician will respect the confidential 

nature of the communication. The physician should not reveal_ 

confidential communications or information without the express 

consent of the patient, unless required to do so by law. 73 

This provision clearly creates a professional duty that requires healthcare 

providers to maintain the confidentiality of patient information. But Caldwell 

overstates the weight of the Code of Medical Ethics. It is true that the Code 

was promulgated under statutory authority and that violations of the Code are 

71Kentucky Revised Statutes (KRS) 311.565(1)0). 

72KRS 311.595(9), (16). 

73American Medical Association, Council on Ethical and Judicial Affairs, CODE 

OF MEDICAL ETHICS § 5.05 (1994). Castro and Amicus Curiae Kentucky Defense 

Counsel, Inc., note that the quoted provision, the one relied on by Caldwell, is an 

outdated version of this section. This is correct; but the updated version is 

substantially the same as the one relied upon by Caldwell, and the amendment does 

not affect out analysis. See American Medical Association, Council on Ethical and 

Judicial Affairs, CODE OF MEDICAL ETHICS § 5.05 (2007). 

26 
punished by the Board under statutory authority. But that tangential 

statutory basis is insufficient to give the Code the force of law and create an 

all-encompassing right to confidentiality by patients. 

Indeed, other ethical codes policing the medical community—even one 

adopted jointly with the Kentucky Bar Association—have been held to lack the 

weight of law. 74"The Code professes to be an ethical guide, not an authority 

binding the courts." 75We are not alone in our conclusion that ethical 

standards levied within the medical community are not binding on courts. 76 

 Further, counsel's ability to seek an ex parte interview with a physician bound 

by the Code does not prevent the physician from abiding by his professional 

duty of confidentiality. 

A physician's ethical duty of confidentiality, even if promulgated by a 

professional body under statutory authority, does not carry the weight of law to 

limit a litigant's ability to engage in ex parte interviews with physicians. 

Admittedly, the ethical duty may restrain the physician's willingness to agree to 

such an interview; but it in no way prohibits a party to litigation from 

requesting one. 

74 Davenport v. Ephraim McDowell Mem. Hosp., 769 S.W.2d 56, 62 (Ky.App. 

1988). 

75 Id. 

76 Bryant v. Hilst, 136 F.R.D. 487, 492 (D. Kan. 1991) ("The court finds the code 

of ethics inapplicable to the issues before the court. First, it is not binding law."); 

Bryson v. Tillinghast, 749 P.2d 110, 114 (Okla. 1988) ("[E]thical standards are 

aspirational in nature and not enforceable by law."). 

27 
3. Kentucky Case Law Does not Preclude Litigants from Interviewing 

Ex Parte Treating Physicians. 

For her last argument, Caldwell cites Geary v. Schroering77 as the 

preeminent Kentucky case barring ex parte contact with treating physicians. 

As with her previous state-law arguments, Caldwell again overstates the scope 

of the law she cites. 

In Geary, the trial court ordered the personal-injury plaintiff to sign a 

blank medical authorization allowing the "unrestricted release" of all her 

medical information to the defendant. 78The Court of Appeals, in a writ 

proceeding, likened the blank authorization to an ex parte subpoena. 79Such 

ex parte subpoenas, the Court of Appeals noted, were forbidden by Munroe v. 

Kentucky Bar Association. 80 

The Court of Appeals went on in Geary to extol the virtues of our civil 

rules by explaining that the medical records sought by the defendant may be 

discovered through traditional discovery methods, such as formal subpoenas 

and depositions. 81The court further stressed the importance of "adversarial 

safeguards" in the discovery process. 82 

The tenor of the opinion of the Court of Appeals in Geary appears to 

support Caldwell's position, but Geary's analysis diverges from the instant 

77979 S.W.2d 134 (Ky.App. 1998). 

78 Id. at 135. 

79 Id. at 136. 

80927 S.W.2d 839 (Ky. 1996). 

81979 S.W.2d at 136. 

82 Id. 

28 
issue by contemplating ex parte subpoenas. The case at hand contains no 

suggestion of the use of ex parte subpoenas, nor can it rightfully be said that a 

litigant requesting an ex parte interview (or an order permitting the defendant 

to make such a request) is akin to an ex parte subpoena. By their very nature, 

informal ex parte interviews are voluntary and, thus, unlike the ex parte use of 

subpoena power. 

Caldwell also takes issue with the trial court and the Court of Appeals 

citing Davenport v. Ephraim McDowell Memorial Hospital, Inc., 83as support for 

the contested order because its holding was premised upon an earlier version 

of CR 26.02. In Davenport, the trial court entered an order permitting a 

medical-malpractice defendant to request an ex parte meeting with the 

plaintiff's treating physicians, whom the plaintiff had enlisted as expert 

witnesses ahead of tria1. 84On appeal, the Court of Appeals concluded the trial 

court's order was proper, seizing on the language in the then-existing version of 

CR 26.02(4)(a)(ii) that permitted discovery from expert witnesses "by other 

means" not enumerated by the civil rules at the discretion of the trial court. 85 

We agree that discussion of Davenport is misplaced. The 2004 amendment to CR 26.02 removed the "by other means" language relied upon by the 

Court of Appeals in holding the trial court's order valid. For this reason, 

83769 S.W.2d 56 (Ky.App. 1988). 

84 Id. at 62. 

85 Id. 

29 
Davenport's analysis of ex parte communications with expert witnesses is 

outdated. 

But simply because the language that authorized the court's order in 

Davenport has been removed, that does not shift Davenport into a tacit 

abolition of litigants' ability to seek ex parte meetings with the opposing party's 

physicians. One crucial fact renders Davenport inapplicable as an indictment 

against ex parte contacts with physicians: it concerns physicians retained as 

expert witnesses. Once retained as experts, CR 26.02(4)—both the version 

extant in Davenport and the iteration currently in force—lists exclusively the 

manner in which discovery may be obtained. 86So removal of the language 

permitting authorization of discovery "by other means" vitiates ex parte 

interviews with physicians retained as expert witnesses, but no such language 

limits discovery from nonexpert fact witnesses to the formal methods 

authorized in our Civil Rules. 

The case that we find most applicable to the present controversy evaded 

citation by both the trial court and the Court of Appeals. In Roberts v. 

Estep, 87—the only case touching on this issue to be decided by this Court—we 

held that no Kentucky law prohibits a defendant from contacting ex parte the 

plaintiff's treating physicians. 88Caldwell attempts to undercut the strength of 

this holding noting Roberts was a workers' compensation case and 

86CR 26.02(4) ("Discovery of facts known and opinions held by experts . . . may 

be obtained only as follows . . . ."). 

87845 S.W.2d 544 (Ky. 1993). 

88 Id. at 547. 

30 
KRS 342.020 requires waiver of any privilege or confidentiality when filing 

claim.89Caldwell correctly states the law but not its impact on the Court's 

decision. 

Roberts does not cite to KRS 342.020 and waiver, compulsory or 

otherwise. The Court concluded that the defendant's ex parte contact with 

plaintiff was not rendered impermissible by Kentucky law; it did not conclude 

that waiver under KRS 342.020(8) authorized the defendant's contact. Had the 

Court in Roberts based its decision on KRS 342.020, we think it would have 

said so. We will not read into the Court's analysis law that is not patent in its 

opinion. 

In support of her argument against the trial court's order, Caldwell cites 

statutory and case law from various jurisdictions that prohibit ex parte 

contacts with treating physicians. While we respect the decisions of our sister 

states, we nonetheless find their citation unpersuasive. Most notably this is 

because most of the cited decisions were based on state laws that have no 

counterpart in Kentucky law—namely the physician-patient privilege and 

statutes explicitly prohibiting ex parte interviews with treating physicians. 

That other states found it prudent to adopt a physician-patient privilege or to 

prohibit by statutory enactment the type of contacts CaldWell currently 

challenges does little to alter our analysis of Kentucky law. 

Upon conclusion of our analysis of Kentucky law, and having addressed 

each of Caldwell's state-law arguments, we have unearthed no law that limits a 

KRS 342.020(8). 

31 
litigant's ability to conduct informal ex parte interviews when the fact witness 

to be interviewed is a treating physician. 90They are like any other fact witness 

in the eyes of the law, and litigants may request voluntary ex parte interviews 

with nonexpert treating physicians as they please. But Kentucky law does not 

create an entitlement or right to conduct ex parte interviews with treating 

physicians. 

So Kentucky law cannot be "contrary" to HIPAA as pertaining to ex parte 

interviews with treating physicians because our law speaks to their viability. 91 

 We conclude, therefore, that there are no limitations on a defendant's ability to 

request an ex parte interview with the plaintiff's treating physician. But the 

physician's ability to disclose the plaintiff's protected health information in an 

ex parte correspondence is regulated by HIPAA, so disclosure may only be 

permitted by order of the trial court satisfying 45 C.F.R. § 164.512(e)(1)(i). Like 

with all other discovery matters, trial courts will remain the gatekeepers and 

may grant or deny a party's request for a HIPAA-compliant order authorizing 

ex parte disclosure of protected health information at their discretion. 92 

90This holding, of course, does not vitiate any professional duties of 

confidentiality by which physicians may be bound. That those duties do not carry the 

weight of law does not render them inapplicable or unenforceable in the proper venue. 

91 See Arons, 880 N.E.2d at 842 ("[W]here there is a State provision and no 

comparable or analogous federal provision, or the converse is the case, there is no 

possibility of preemption because in the absence of anything to compare there cannot 

be a contrary requirement . . . .") (citing Standards for Privacy of Individually 

Identifiable Health Information, 64 Fed.Reg. 59,918, 59,995) (Nov. 3, 1999) (quotation 

marks and alterations omitted). 

92 See Holman, 785 N.W.2d at 108-09 ("HIPAA does not require a trial court to 

grant a motion for a protective order. Therefore, a trial court retains its discretion .. . 

to issue protective orders and to impose conditions on ex parte interviews."). 

32 
C. The Challenged Order Does not Satisfy HIPAA's Procedural Requirements for the Disclosure of Protected Health Information; but Because 

the Order Expressly Withholds the Necessary Authorization, a Writ 

Need not Issue. 

Having determined the law applicable to ex parte interviews with treating 

physicians, we must now apply that law to the facts at hand. After little more 

than a cursory review of the challenged trial court order, it becomes manifest 

that the order does not satisfy the requirements of HIPAA to permit disclosure 

of protected health information during ex parte interviews. 

As addressed above, for disclosure of protected health information to 

comply with HIPAA, a litigant must first obtain an order authorizing disclosure 

under 45 C.F.R. § 164.512(e)(1)(i). The instant order does not meet this 

requirement. In fact, the order acknowledged the need for authorization to 

permit disclosure of Caldwell's protected health information by her physicians 

yet declined to authorize disclosure. 

The present order has done nothing more than maintain the status quo. 

It has effectively, and correctly, stated the status of the law currently: defense 

counsel may seek an ex parte interview with Caldwell's treating physicians, but 

those physicians may not disclose her protected health information without 

facing HIPAA sanctions. Indeed, the order states as much—"the treating 

physician may be unable . . . to speak with counsel absent specific 

authorization from the [c]ourt permitting him to do so. The [c]ourt is vested 

with the discretion to provide such authorization. However, the [c]ourt is not 

inclined to do so in the instant case . . . ." 

33 
We decline to exercise our discretion to issue a writ in this instance even 

though any ex parte disclosure of protected health information would surely 

violate HIPAA. This injury is too speculative to merit such an extraordinary 

remedy. The order leaves the treating physicians' participation in the ex parte 

interview and the disclosure of Caldwell's medical information—if they do 

choose to undertake the interview—to the doctors' discretion. The harm is not 

immediate enough to require an extraordinary remedy to rectify Caldwell's 

potential grievance. 

Further, the trial court's order does nothing to displace the duty of 

privacy placed on healthcare providers by HIPAA's privacy regulations. The 

order does not supplant or alter the duty placed on the physicians possessing 

Caldwell's protected health information. The order's authorization of the 

ex parte contacts that Castro sought was also unnecessary based on our 

analysis; Castro's counsel did not need the court's blessing to seek an ex parte 

meeting with Caldwell's physicians. The meetings, even without the challenged 

order, would be, of course, at the discretion of the physician, just as they are 

under the order. 

Given these circumstances, we find the trial court's order to be an 

accurate statement of the law as it is presently situated and that any potential 

HIPAA violation is too speculative to merit extraordinary relief in the form of a 

writ. So we affirm the decision of the Court of Appeals denying Caldwell's 

petition for a writ. 

34 
III. CONCLUSION. 

Based on the foregoing, we conclude nothing in Kentucky law prohibits 

defendants from seeking ex parte contacts with nonexpert physicians that 

treated the plaintiff as if they are ordinary fact witnesses. We similarly 

conclude that HIPAA does not prohibit ex parte interviews with treating 

physicians as a tool of informal discovery. That HIPAA does not operate to bar 

these contacts does not relieve treating physicians of the constraints of HIPAA's 

privacy regulations. HIPAA controls disclosure of protected health information. 

Trial courts may satisfy HIPAA and authorize disclosure of the plaintiff's 

protected health information in an ex parte interview by entering an order that 

complies with 45 C.F.R. § 164.512(e)(1)(i). 

We conclude that the order challenged in the instant proceeding did not 

comply with 45 C.F.R. § 164.512(e)(1)(i), and any disclosures made during 

ex parte interviews authorized by the order would be in violation of HIPAA. But 

the order is explicit in its failure to authorize disclosure and its grant of 

permission allowing Castro's counsel to seek ex parte interviews with Caldwell's 

physicians was not necessary to authorize this practice. So we find the 

challenged order to be nothing more than an accurate recitation of the law 

pertaining to ex parte interviews with the opposing party's treating physicians 

and does not merit an extraordinary writ of prohibition. 

All sitting. All concur. Keller, J., concurs by separate opinion in which 

Barber and Noble, JJ., join. 

35 
KELLER, J., CONCURRING: I concur with the result of the majority 

opinion but write separately because I believe that it is time for Kentucky to 

adopt a general physician-patient privilege. As the majority states, "We have 

heretofore not identified a cognizable right to a privilege in medical 

communications and again decline to do so today." That statement is only 

partially correct. KRE 507 recognizes that communications between a 

psychotherapist and patient are privileged. A psychotherapist is defined, in 

part, as "[a] person licensed by the state of Kentucky, or by the laws of another 

state, to practice medicine . . . while engaged in the diagnosis or treatment of a 

mental condition." KRE 507(2)(A) (emphasis added). Thus, Kentucky does 

recognize that medical communications are privileged as long as they occur 

within the mental health setting. It is understood that sensitive and highly 

personal information is exchanged between a patient and his or her 

psychotherapist. Likewise, a patient being treated by a physician for purely 

physical ailments must reveal sensitive health information in order to facilitate 

treatment. I can discern no logical reason for the exclusion of medical 

communications regarding physical health from privilege when 

communications regarding mental health are privileged. 

I note that the other privileges in Article V of the KRE, with the exception 

of the spousal privilege, prohibit disclosure, not just testimony. Therefore, a 

general physician-patient privilege should, if similar to the psychotherapistpatient privilege, also prevent disclosure of privileged communications unless a 

36 
patient places her medical condition into controversy and the information is 

obtained in conformity with the rules of procedure. 

Barber and Noble, JJ., join. 

37 
COUNSEL FOR APPELLANT: 

Eric M. Lamb 

Lamb 86 Lamb, PSC 

Erwin A. Sherman 

Sherman and Osborne 

APPELLEE: 

Judge Arch Cox McKay Chauvin 

Jefferson Circuit Court, Division 8 

COUNSEL FOR REAL PARTY IN INTEREST, 

DR. FRANK P. CASTRO, 

D/B/A PALO ALTO SPINE, LLC: 

Donald Kenneth Brown, Jr. 

Casey Alan Krill 

Mark Edward Hammond 

Robert Clayton Veldman 

O'Bryan, Brown 86 Toner, PLLC 

COUNSEL FOR AMICUS CURIAE 

KENTUCKY JUSTICE ASSOCIATION: 

H. Philip Grossman 

Grossman 86 Moore, PLLC 

Paul A. Casi, II 

Jeffrey Wayne Adamson 

Paul A. Casi, II, P.S.C. 

Kevin Crosby Burke 

COUNSEL FOR AMICUS CURIAE 

KENTUCKY DEFENSE COUNSEL: 

Bradley A. Case 

Dinsmore 86 Shohl, LLP 

38