State Ex Rel. Collins v. Roldan , 289 S.W.3d 780 ( 2009 )

ALOK AHUJA, Judge.

Relator John W. Collins, M.D., asks us to issue a writ requiring the cireuit court to compel the plaintiff in a medical malpractice action to execute the medical authorization form which Collins had tendered to plaintiff. We issued a preliminary writ of prohibition on December 11, 2008. Having concluded that decisions of the Missouri Supreme Court foreclose the relief Collins seeks, we now quash our preliminary writ.

Factual Background

On May 23, 2008, Carli Smith, by her mother (Sherri Smith) as next friend, filed a medical malpractice action against three doctors, including Relator Collins. Collins requested that Smith execute a medical authorization form he provided her. The authorization form provided Smith's consent to the disclosure to Smith's or Collins' counsel, or to any persons present during depositions in the case, of "[alny and all information, including records, concerning any medical care provided to, or medical treatment of, the person named above."

Smith's mother signed the medical authorization form for her minor daughter. However, Sherri Smith modified the authorization by specifying that the information subject to disclosure included only "[mjedical records and bills concerning any medical care provided to, or medical treatment of, the person named above." In addition, she added the following prominent qualification at the top of the authorization's first page:

THIS AUTHORIZATION DOES NOT EXTEND TO PRIVATE INTERVIEWS BETWEEN ANY HEALTH CARE PROVIDER LISTED BELOW (WITH THE EXCEPTION OF DR. COLLINS) AND REPRESENTATIVES OF THE LAW FIRM OF SHAFFER LOMBARDO SHU-RIN [COLLINS LAWYERS]. ANY SUCH CONVERSATIONS WOULD BE CONTRARY TO THE EXPRESS WISHES OF SHERRI L. SMITH ON BEHALF OF CARLI A. SMITH.

Collins repeated his request that Smith execute the medical authorization form he had tendered, omitting this limiting language. Sherri Smith refused.

Collins filed a motion to compel request, ing that the court order Smith to execute his form of medical authorization. The cireuit court overruled Collins' motion. Collins then filed a petition for a writ of prohibition with this Court, requesting that we direct the cireuit court to compel Smith to execute a medical authorization form without the limiting language. On December 11, 2008, this court issued a preliminary writ of prohibition ordering the cireuit court to refrain from further action in the ease until further order of this Court.

Analysis

A.

"Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power." State ex rel. Marianist Province of the U.S. v. Ross, 258 S.W.3d 809, 810 (Mo. banc 2008); accord, State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008)¹

B.

The focus of Collins' Petition, and his supporting briefing, is the propriety of the legend Sherri Smith added to the top of the medical authorization form Collins tendered to her, which admonished Smith's health-care providers that the authorization "does not extend to private interviews" with defense counsel, and that "[alny such conversations would be contrary to [the Smiths'] express wishes." It may well be that the admonition Sherri Smith added to the authorization form was inappropriate, and that an extraordinary writ would be the appropriate vehicle to require the trial court to order execution of an authorization without this legend.² We need not definitively resolve that issue, however, because we believe-for an entirely separate reason-that Collins was not entitled to have the court order the Smiths to sign his form of authorization.

In his briefing and argument, Collins has steadfastly maintained that, other than the addition of the legend at the top of the authorization form, Sherri Smith did not alter the form Collins tendered. Thus, in his opening brief Collins argues that "IJt is undisputed in this case that the medical authorization that Relator is requesting is properly-tailored, given that the medical authorization that was previously signed [by Sherri Smith] describes the scope of the authorized disclosure in exactly the same terms as the medical authorization being requested by Relator."

Unfortunately, Collins' claim that Sherri Smith made no alteration to Collins' form of medical authorization, other than to add the admonition concerning ex parte communications, is inaccurate. To the contrary, the medical authorization form Sherri Smith executed on her daughter's behalf also alters the scope of the information subject to disclosure. The form Collins provided to the Smiths states that

The information to be disclosed is described as follows:

Any and all information, including records, concerning any medical care provided to, or medical treatment of, the person named above.

(Italies added.) The form Sherri Smith returned, however, narrowed the seope of "[the information to be disclosed," providing that disclosure was only authorized with respect to "/mjJedical records and bills concerning any medical care provided to, or medical treatment of, the person named above." (Emphasis added.)

The difference between the items whose disclosure the Smiths were willing to authorize ("medical records and bills") versus the disclosure Collins sought (of "any and all information, including records"), is significant, and in our view dispositive of Collins' writ application.

The Smiths argue that "[tlhere is no question that thle] language [of Collins form] is deliberately broad enough to encompass ex parte communications," and that "[the 'clean' authorization advocated by [Collins] requires the [Smiths] to authorize ex parte meetings with treating physicians." We agree. Collins offers no other explanation for the different, and broader, wording of his authorization form. Moreover, the evident purpose of Collins' form-to expressly authorize ex parte communications-is confirmed by the extremely broad definition of "records" subject to disclosure even under the form of authorization Sherri Smith executed.³

Under the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1986 ("HI-PAA"), and the Department of Health and Human Services implementing regulations, it appears that Collins requires a medical authorization that is broad enough to comprehend ex parte communications with Smith's health-care providers in order for him to conduct such ex parte discussions pursuant to the authorization. Under HHS' Privacy Rule, protected "health information" includes "any information, whether oral or recorded in any form or medium...." 45 C.F.R. § 160.103. Under 45 C.F.R. § 164.502(a), "[al covered entity may not use or disclose protected health information, except as permitted or required by" the Privacy Rule. The rule concerning disclosure pursuant to a medical authorization provides in relevant part:

Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.

45 C.E.R. § 164.508(a). Among the "core elements" of a valid HIPAA authorization, it must contain "[a] description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion." 45 CER. § 164.508(c)(1)(i). Thus, to the extent a party seeks to rely on a medical authorization to support disclosure, the Privacy Rule would appear to require that the authorization be worded broadly enough to encompass ex parte interviews.⁴

To the extent Collins seeks a court order compelling Smith to execute a medical authorization broad enough to comprehend ex parte interviews, however, the relief he requests runs headlong into decisions of the Missouri Supreme Court concerning ex parte contacts with a litigant's treating physicians. While the Supreme Court has held that any privilege surrounding a plaintiff's medical information is waived "once there is an issue joined concerning the plaintiff's medical condition," and that this principle applies "to an ex parte conference that is within the seope of the waiver," the Court has also emphasized that "we will not require the plaintiff to execute medical authorizations authorizing his treating physician to engage in ex parte discussions." Brandt v. Med. Defense Assocs., 856 S.W.2d 667, 674 (Mo. banc 1993); accord Brandt v. Pelican, 856 S.W.2d 658, 662 (Mo. banc 1993) ("We reaffirm our holding in [State ex rel.] Woytus [v. Ryan, 776 S.W.2d 389 (Mo. banc 1989),] that we will not require the plaintiff to execute medical authorizations authorizing his treating physician to engage in ex parte discussions."); State ex rel. Norman v. Dalton, 872 S.W.2d 888 (Mo.App. E.D.1994) ("in Brandt I, the Court ruled that a trial court cannot compel the plaintiff to authorize ex parte discussions with her physician).⁵

We recognize that the holding of the Brandt cases-that a court will not compel a patient to execute a medical authorization authorizing ex parte discussions-may be anachronistic in a post-HIPAA world, where disclosures of protected health information to third parties require relatively formal, explicit authorization.⁶ Nevertheless, this is the balance struck by the Supreme Court in the Brandt cases: while ex parte contacts are not prohibited to the extent they fall within the privilege waiver triggered by the patient's pleadings, a third party seeking such ex parte contacts may not ask the court to compel the patient to consent to, or to compel the physician to actually participate in, such discussions. To the extent this aspect of the Brandt cases' holding needs to be re-examined in light of HIPAA's requirements, that is an issue for the Supreme Court.

Conclusion

Because we conclude that Collins is, in essence, seeking a court order compelling Smith to execute a medical authorization authorizing ex parte interviews with her treating physicians, the circuit court did not err in refusing the requested relief. Because it was improvidently granted, we quash the preliminary writ of prohibition previously issued.⁷

Judge HARDWICK concurs in principal opinion.

Judge WELSH concurs in result, with separate opinion.

1 . Although styled as a petition for a writ of prohibition, the relief Collins seeks-a ruling by this Court directing the circuit court to issue an order requiring Smith to execute Collins' preferred form of medical authorization-may properly lie in mandamus. Even if Collins incorrectly denominated the relief he seeks, however, this would not affect our ability to grant any relief to which he is otherwise entitled. See, e.g., State ex rel. Leigh v. Dierker, 974 S.W.2d 505, 506 (Mo. banc 1998) (''This Court has treated petitions for writs of prohibition as petitions for writs of mandamus when the remedy sought by the relator is more appropriate under mandamus practice than prohibition practice."); State ex rel. Rosen v. Smith, 241 S.W.3d 431, 433 (Mo.App. E.D.2007) ("On an application for a writ, we may grant the appropriate remedy irrespective of the relator's prayer.").

2 . See State ex rel. Jones v. Syler, 936 S.W.2d 805, 807, 809 (Mo. bans 1997) (holding that trial court did not abuse its discretion by refusing to require that medical authorization contain admonition to physician not to discuss medical conditions beyond those put in issue in litigation and reminding physician that, if conversation went further, "then I may maintain an action for damages in tort against you for breach of the patient/doctor privilege"); State ex rel. Norman v. Dalton, 872 S.W.2d 888, 889, 892 (Mo.App. E.D.1994) (issuing writ of prohibition to prevent trial court from enforcing order that permitted plaintiff to add the following admonition to medical authorization: "You are not permitted to discuss Donna Grant's medical conditions with anyone without the expressed written consent of Donna Grant or her attorneys...."}.

3 . The form Sherri Smith executed and returned to Collins provides:

To the extent fairly described in any limiting description of information, records and testimony to which this disclosure authorization relates, the records to which this authorization applies include, but are not limited to, the following: any and all complete medical and/or hospital charts, office notes, histories, diagnoses, laboratory reports, physicians' orders, physicians' progress notes, nursing progress notes, admission and discharge summaries, physical therapy and rehabilitation records, radiology reports, MRI reports, CT reports, EKG and/or EEG reports, emergency room records, pharmaceutical or prescription records, data relating to treatment for substance or alcohol abuse, medical evaluations or reports, test scores, pathology reports, pathology slides, paraffin blocks, autopsy reports, autopsy slides, certificate of death, postmortem evaluation, patient billing statements, correspondence and radiological films.

4 . Indeed, Collins himsel{ essentially concedes as much: he acknowledges that "[t}he general rule with regard to disclosure of information under the Privacy Rules is that a 'covered entity' (a term that includes physicians) may not disclose protected health information, except as permitted by the Privacy Rules"; [tlhe general rule goes on to state that a covered entity is permitted to disclose protected health information, under circumstances that include" execution of a valid medical authorization.

5 . In State ex rel. Jones v. Syler, 936 S.W.2d 805 (Mo. banc 1997), the Court considered an authorization that authorized disclosure of "any and all information" concerning a plaintiff's medical treatment, including "copies of all hospital and medical records." Id. at 806. While the Court did not take issue with the breadth of "any and all information," the Court did observe that:

In [State ex rel.] Stecher [v. Dowd, 912 S.W.2d 462 (Mo. banc 1995) ], we defined the proper scope of medical authorizations by stating:

[Djefendants are not entitled to any and all medical records, but only those medical records that relate to the physical conditions at issue under the pleadings. It follows that medical authorizations must be tailored to the pleadings, and this can only be achieved on a case-by-case basis.

Jones, 936 S.W.2d at 807 (quoting Stecher, 912 S.W.2d at 464; emphasis added by Jones court).

6 . At oral argument, Collins' counsel acknowledged that, to the extent Missouri law authorized ex parte interviews in the absence of a valid medical authorization, it would be contrary to, and preempted by, the Privacy Rule. While we need not decide that issue here, Collins' argument underscores the tension between the holding of the Brandt cases and HIPAA's requirements.

7 . Based on our disposition, we need not address the issue discussed in the concurring opinion.