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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harrold-Jones v. Drury (6/22/2018) sp-7253

Harrold-Jones v. Drury (6/22/2018) sp-7253

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        

TARRI  HARROLD-JONES                                              )  

and  DARRYL  L.  JONES,                                           )     Supreme Court No. S-16436  



                                 Petitioners,                     )     Superior  Court  No.  3PA-16-01470  CI  



                                                                  )    O P I N I O N  




TUCKER DRURY, M.D.; WILLIAM   )                                        No. 7253 - June 22, 2018  


PACE, M.D.; and DENALI                                            )  


ORTHOPEDIC SURGERY, P.C.,                                         )  


                                 Respondents.                     )  




                      Petition for Review from the Superior Court of the State of  


                      Alaska,  Third  Judicial  District,  Palmer,  Gregory  Heath,  



                      Appearances:   Darryl L. Thompson, Darryl L. Thompson,  


                      P.C., Anchorage, for Petitioners. DonnaM. Meyers,Whitney  


                      L.  Traeger,  and  Timothy  J.  Lamb,  Delaney  Wiles,  Inc.,  


                      Anchorage,  for  Respondents.                        Roger  F.  Holmes,  Biss  &  


                      Holmes, Anchorage, for Amicus CuriaeAlaskaStateMedical  


                      Association.   Margaret Simonian, Dillon & Findley, P.C.,  


                      Anchorage, for Amicus Curiae Alaska Trial Lawyers.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      WINFREE, Justice.  

----------------------- Page 2-----------------------


                    We granted this petition for review to consider how the federal Health  


Insurance Portability and Accountability Act of 1996 (HIPAA) - establishing medical  


privacy standards with specific exceptions - affected our personal injury case law  


allowing a defendant ex parte contact with a plaintiff's doctors as a method of informal  


discovery.   We requested that the parties specifically brief whether the federal law  


preempted our case law, or, if not, whether federal law otherwise required us to overrule  


or modify our case law. We conclude that the federal law does not preempt our existing  


case law.   But we also  conclude that we should overrule our case law because its  


foundations have been eroded by a cultural shift in views on medical privacy and new  


federal procedural requirements undermining the use of ex parte contact as an informal  


discovery  measure.               We  therefore  hold  that  -  absent  voluntary  agreement  -  a  


defendant may not make ex parte contact with a plaintiff's treating physicians without  


a court order, which generally should not be issued absent extraordinary circumstances.  


We believe that formal discovery methods are more likely to comply with the federal law  


and promote justice and that such court orders rarely, if ever, will be necessary.  




                    In August 2014 Tarri Harrold-Jones fractured her clavicle. She visited the  


emergency room and was referred to Denali Orthopedic Surgery.  Dr. Tucker Drury, a  


Denali  physician,  later  performed  corrective  surgery.                              Harrold-Jones  experienced  


continued pain and discomfort following the surgical procedure and she returned to  


Denali, where Dr. William Pace evaluated her.  


                    Harrold-Jones ended treatmentat Denali and transferredher care to another  


doctor.   Harrold-Jones later retained counsel who sent Denali a letter in early 2015,  


attaching a draft complaint alleging Drs. Drury's and Pace's malpractice and seeking  


                                                               -2-                                                        7253

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compensation.   Denali's counsel responded by requesting a medical release authorizing                                                                 

access   to   Harrold-Jones's   "complete   medical   record   or   designated   record   set"   and  

authorizing ex parte contact with her medical providers.                                                          Harrold-Jones refused to sign                      

the authorization.                   Denali's counsel responded by narrowing the request to a release for                                                               

Harrold-Jones's new doctor's office and to allow counsel to make ex parte contact with                                                                               

                                 2     Harrold-Jones  refused  to  sign  this  authorization  and  two  similar  

the   new   doctor.                                                                                                                                            

requested authorizations in the following months.  


                           Harrold-Jones filed a medical malpractice suit against Denali and the two  


doctors in April 2016. Denali's counsel renewed the request for a release authorizing ex  


parte  contact  with  Harrold-Jones's  new  doctor  three  more  times.                                                                         Harrold-Jones  


continued to refuse this authorization, and she sought a protective order prohibiting  


Denali from having ex parte contact with her new treating doctor.  Denali opposed and  


moved to compel Harrold-Jones to authorize such contact.  The superior court denied  


Harrold-Jones's motion and granted Denali's in August 2016, relying on Langdon v.  


Champion as the basis for its ruling.3  


              1            Denali, Dr. Drury, and Dr. Pace are hereafter collectively referred to as                                                                     

"Denali" unless otherwise necessary for our discussion.                                   

             2             In this context, ex parte contact, also referred to as ex parte interview, ex  


parte communication, or ex parte conference, occurs when a defendant or defendant's  


counsel meets with a plaintiff's treating physician without the plaintiff or plaintiff's  


counsel present.  We approved ex parte contact as an informal discovery measure in a  


series of decisions in the 1970s and 1980s, culminating in Langdon v. Champion, 745  


P.2d 1371, 1375 (Alaska 1987).  


             3            Id.  ("We conclude that [our  case law] authorize[s] defense counsel  to  


engage in informal ex parte conferences with a plaintiff's treating physician.").  


                                                                                    -3-                                                                            7253

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                           Harrold-Jones petitioned for review, which we granted to decide whether                                                            

HIPAA preempts our case law allowing ex parte contact                                                                    with a plaintiff's treating          

physician or otherwise requires us to overrule or modify that case law.                                                                        

III.          STANDARD OF REVIEW                    

                           "Whether a defendant's counsel has the right to engage in informal ex parte                                                              


interviews with a plaintiff's treating physician is a question of law."                                                                          

                                                                                                                                       The "interpretation  



of federal statutes" is a question of law.                                            "Whether a federal statute preempts a state  



court rule is also a question of law."                                      "We review questions of law de novo, 'adopting  



the rule of law most persuasive in light of precedent, reason, and policy.' " 

IV.          DISCUSSION  


                           We  granted  Harrold-Jones's  petition  for  review  primarily  to  decide  


HIPAA's  effect  on  "our  existing  case  law  regarding  a  plaintiff's  waiver  of  the  


patient/physician privilege and ex parte communications between defense counsel and  



the  plaintiff's  treating  physicians."                                      Having  reviewed  HIPAA  and  the  regulations  


promulgated under its authority, we conclude that federal law does not preempt our  


decisions allowing ex parte communications between defense counsel and a plaintiff's  


treating physicians.   But new procedural requirements HIPAA imposes on ex parte  


contact  -  amidst  a  cultural  shift  emphasizing  medical  privacy  -  significantly  

             4             Id.  at   1372  n.2.  

             5             Estate  of  Kim  ex  rel.  Alexander  v.  Coxe,  295  P.3d  380,  386  (Alaska  2013).  

             6             Catalina  Yachts  v.  Pierce,   105  P.3d   125,   128  (Alaska  2005).   

             7             Id.  (quoting  Kodiak  Island  Borough  v.  Roe,  63  P.3d  1009,  1012  n.6  (Alaska  


             8             Harrold-Jones   v.   Drury,   No.   S-16436   (Alaska   Supreme   Court   Order,  

Nov.  2,  2016).  

                                                                                    -4-                                                                            7253

----------------------- Page 5-----------------------

undermine   the   reasoning   behind   our   original  decisions.     Based   on   this   change   in  

circumstances, we overrule                                           Langdon  and hold that - absent agreement by the plaintiff                                                                      

-  a defendant or defendant's counsel may not make ex parte contact with a plaintiff's                                                                                                         

treating   physician   unless   authorized   to   do   so   by   a   court   order,   which  we   believe  

generally should be available only under extraordinary circumstances.                                                                      

                 A.              HIPAA Provides Privacy Protections, With Relevant Exceptions.                                                                                  

                                 We begin our analysis with the federal law in question.                                                                                    Congress enacted   

HIPAA in 1996 to improve health insurance coverage, combat fraud, and simplify health                                                                                                                     


insurance administration.                                                                                                 

                                                                     Subtitle F of HIPAA addressed patient privacy by defining  


protected health information, defining entities who must protect health information, and  


requesting further privacy recommendations from the Department of Health and Human  

                                         10     Congress instructed HHS to promulgate further privacy regulations  



Services (HHS). 

if Congress failed to do so within three years of HIPAA's enactment.11  


                                                                                                                                                                                    After the three  



years passed without congressional action, HHS promulgated the "Privacy Rule," 

series  of  regulations  governing  permitted  uses  and  disclosures  of  protected  health  


information.  Together, Subtitle F of HIPAA and the Privacy Rule form the federal law  


at issue in this case, which we will refer to collectively as HIPAA for ease of reference.  


                 9               HealthInsurancePortability and AccountabilityActof1996(HIPAA),Pub.                                                                                                           

L.  No. 104-191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29, and 42                                                                                                                             


                 10              Id.   261-62, 264.  


                 11              Id.   264.  


                 12              45 C.F.R.  160, 164 (2017).  


                                                                                                         -5-                                                                                                7253

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                        1.          Overview of privacy protections         

                        HIPAA's privacy framework begins with express preemption.                                                            HIPAA  


preempts contrary state laws unless they are more stringent than HIPAA itself.                                                                     

                                                                                                                                              A state  


law is "contrary" to HIPAA if a covered entity would find it impossible to comply with  


both  the  state  and  federal  requirements  or  if  the  state  law  is  an  obstacle  to  the  



accomplishment of the full purposes of HIPAA section 264. 


                        HIPAA then protects a subject individual's privacy with a two-part rule  



regarding protected health information.                                    First, HIPAA broadly prohibits any covered  

          16                                                 17                                                        18  


               from using  or  disclosing                        protected  health  information.                             Denali  does  not  


disputethat expartecontact with Harrold-Jones'streatingphysicianwouldconstituteuse  


or disclosure of protected health information by a covered entity.   Second, HIPAA  

            13          HIPAA  264(c)(2).      



                        45 C.F.R.  160.202.                      Section 160.202 also provides that a state law is  

contrary to HIPAA if it is contrary to sections 13400 to 13424 of the American Recovery                                                   


and Reinvestment Act of 2009, but these provisions are not relevant to this petition.  

            15          See 45 C.F.R.  164.502(a) ("A covered entity or business associate may  


not use or disclose protected health information, except as permitted or required by  



            16          45 C.F.R.  160.103 defines a "[c]overed entity" as a health plan, health  


care clearinghouse, or health care provider who transmits any health information in  


electronic form in a HIPAA-covered transaction.  


            17          45  C.F.R.    160.103  defines  "[u]se"  as  "the  sharing,  employment,  


application,  utilization,  examination,  or  analysis  of  [individually  identifiable  health  


information]" and "[d]isclosure" as "the release, transfer, provision of access to, or  


divulging in any manner of information outside the entity holding the information."  


            18          45   C.F.R.      160.103   defines   "[p]rotected   health   information"   as  


"individually identifiable health information."  


                                                                           -6-                                                                    7253

----------------------- Page 7-----------------------


provides specific exceptions to the prohibition for enumerated uses and disclosures.                                                                           



Only two HIPAA exceptions require disclosure;                                                  the remainder leave the choice of  

                                                           21   Two of these permissive exceptions are applicable  



disclosure to the covered entity. 

here.   First, a covered entity may disclose protected health information with a valid  


authorization from the subject individual (the authorization exception).22                                                                 Second, a  


covered entity may disclose protected health information in the context of a judicial or  


administrative proceeding (the litigation exception).23  


                        2.          The authorization exception          

                        The authorization exception allows                               permissive  disclosure once the subject                 



executes a valid authorization.                               A valid authorization contains at minimum:   (1) a  


statement of the remuneration, if any is involved; (2) a description of the information to  


be used or disclosed identified in a specific and meaningful fashion; (3) "[t]he name or  


other specific identification of the person(s), or class of persons, authorized to make the  


requested use or disclosure"; (4) "[t]he name or other specific identification of the  


person(s), or class of persons, to whom the covered entity may make the requested use  

            19          45 C.F.R.  164.502(a).        



                        The  two  mandatory  exceptions,  concerning  an  individual's  right  to  


information and HHS's enforcement of its regulations, are not at issue here.  See id.  



            21           Compare id.   164.502(a)(1) ("A covered entity is permitted  to use or  


disclose protected health information as follows . . . ." (emphasis added)),  with id.  


 164.502(a)(2) ("A covered entity is required to disclose protected health information  


. . . . (emphasis added)).  


            22          Id.   164.508.  


            23          Id.   164.512(e).  


            24          Id.   164.508(b)(1).  


                                                                            -7-                                                                     7253

----------------------- Page 8-----------------------

or disclosure"; (5) "[a] description of each purpose of the requested use or disclosure";                                             

(6)   an   expiration  date   or   event   related   to   the   subject   or   the   purpose   of   the   use   or  

                                                                                                      25    An authorization must be  

disclosure; and (7) the date and the subject's signature.                                                                                              

                                            26  and contain a statement informing the subject of the right to  

written in plain language                                                                                                                               


revoke the authorization.27                       The subject may revoke an authorization at any time.28  


                        Covered entities making disclosures under HIPAA normally "must make  


reasonable efforts to limit protected health information to the minimum necessary to  


accomplish the intended purpose" of the disclosure.29                                                 But the minimum necessary  


standard does not apply to disclosures made under the authorization exception30 because  


authorizations are "voluntary";31 the scope of disclosure is instead governed by the terms  


of the authorization.32  


            25          Id.     164.508(a)(3)(ii),  (a)(4)(ii),  (c)(1).  

            26          Id.     164.508(c)(3).  

            27          Id.     164.508(c)(2)(i).  

            28          Id.     164.508(b)(5).   This  right  is  subject  to  two  exceptions  not  at  issue  in  

this  case.   See  id.     164.508(b)(5)(i)-(ii).  

            29          Id.     164.502(b)(1).  

            30          Id.   164.502(b)(2)(iii).  


            31          See Standards for Privacy of Individually Identifiable Health Information,  



65 Fed. Reg. 82,462, 82,519 (Dec. 28, 2000).  


            32          45 C.F.R.  164.508(a)(1) ("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."); see also Standards for Privacy  


of Individually Identifiable Health Information, 65 Fed. Reg. at 82,513-14 ("In the final  


rule,  we  clarify  that  covered  entities  are  bound  by  the  statements  provided  on  the  


authorization; use or disclosure by the covered entity for purposes inconsistent with the  



                                                                           -8-                                                                    7253

----------------------- Page 9-----------------------

                                  3.               The litigation exception               

                                  Thelitigationexceptioncontrastingly allowsfor permissivedisclosureeven                                                                                                         

against the subject's wishes. A covered entity may disclose protected health information                                                                                                       

if, and only to the extent that, the disclosure is otherwise required by law and the covered                                                                                                             

entity meets one of three litigation-related requirements.                                                                                      33                                                                    

                                                                                                                                                       First, the disclosure can be  



made in response to an authorizing court order, such as a court-issued subpoena. 


HIPAA restricts such orders to "mandate[s] contained in law that compel[] an entity to  


make a use or disclosure of protected health information and that is enforceable in a court  



of law"; accordingly state court orders must also comply with state law under HIPAA. 

Second, the disclosure can be made in response to a party's subpoena, discovery request,  


or other lawful process if the covered entity receives "satisfactory assurances" from the  


                                            36       "Satisfactory assurances" means the requesting party either has  

requesting party.                                                                                                                                                                                                  


                 32               (...continued)  


statements made in the authorization constitute a violation of this rule.").  

                 33               45 C.F.R.  164.512(a).        



                                  Id.    164.512(e)(1)(i); see  also  Standards  for  Privacy  of  Individually  


Identifiable Health Information, 65 Fed. Reg. 82,462, 82,529 (Dec. 28, 2000) ("For  

example, a subpoena issued by a court constitutes a disclosure which is required by law                                                                                                                             

as defined in this rule, and nothing in this rule is intended to interfere with the ability of                                                                                                                         


the covered entity to comply with such subpoena.").  

                 35               See 45 C.F.R.  164.103.  For instance, it would violate HIPAA if, under  


Alaska law, a trial court's order constituted an abuse of discretion by being overly broad.  


Cf. Khalsa v. Chose, 261 P.3d 367, 373 (Alaska 2011) (upholding order to sign medical  


waivers against challenge that order was overbroad).  


                 36               45 C.F.R.  164.512(e)(1)(ii).  


                                                                                                           -9-                                                                                                  7253

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provided   the   subject   notice   and   opportunity   to   object                      or   has   received   a   qualified  

protective order limiting disclosure to that relevant to the current proceeding.                                      38  Third,  


the disclosure can be made in response to a party's subpoena, discovery request, or other  


lawful  process  if  the  covered  entity  itself  provides  the  subject  with  notice  and  

                                                                                         39  As with the authorization  


opportunity to object or seeks a qualified protective order. 

exception, the covered entity is not obligated by HIPAA to make any disclosure under  


any of the three litigation exception avenues.40  


                     The scope of disclosure subtly differs between the authorization exception  


and the litigation exception, and within the litigation exception's different mechanisms.  


While the scope of disclosure under the authorization exception is determined  by the  


authorization's language, the scope of disclosure under a court order is determined by  


                                                           41   But the scope of qualified protective orders is  

the terms of that order - i.e., state law.                                                                                        


defined by HIPAA itself; all qualified protective orders must contain a prohibition on the  


use or disclosure of protected health information for any purpose other than the current  


proceeding and a required return or destruction of the protected health information at  


          37        Id.     164.512(e)(1)(ii)(A).   

          38        Id.     164.512(e)(1)(ii)(B).  

          39        Id.     164.512(e)(1)(vi).  

          40        Id.     164.502(a)(1).  

          41         Compare  id.     164.508(a)(1)  ("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."),  with   id.      164.512(e)(1),  

(1)(i)  ("A  covered  entity  may  disclose  protected  health  information  in  the  course  of  any  

judicial  or  administrative  proceeding  .  .  .  provided  that  the  covered  entity  discloses  only  

the protected  health information expressly  authorized by such  order.");  see also supra  

note  35.  

                                                               -10-                                                         7253

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litigation's end.             As with the authorization exception, HIPAA's minimum necessary                                

                     43                                                             44  


                        do not apply tothelitigation exception                        because"theindividual exercises  


the  right  to  object  before  the  court  or  other  body  having  jurisdiction  over  the  


           B.        HIPAA Does Not Preempt Alaska Law Allowing Ex Parte Contact.  


                     Under the Supremacy Clause, "the Laws of the United States . . . shall be  


the supreme Law of the Land; and the Judges in every State shall be bound thereby, any  


Thing in the Constitution or Laws of any State to the Contrary notwithstanding."46  



clause mandates federal preemption of state law when a federal law contains express  


preemptive language, conflicts with a state law, or displaces all state laws by occupying  



                                           HIPAA contains express preemptive language; therefore the  

the entire regulated field. 



express preemption doctrine governs this case. 

           42        45  C.F.R.     164.512(e)(v).  

           43        See  supra  p.  8.  

           44        See  45 C.F.R.    164.502(b)(2)(v)  ("This  [minimum necessary]  requirement  

does not apply  to   .   .   .   [u]ses   or   disclosures  that   are  required  by   law,   as   described  by  

   164.512(a)  .  .  .  .").  

           45        See Standards for Privacy of Individually Identifiable Health Information,  



65 Fed. Reg. 82,462, 82,530 (Dec. 28, 2000); see also id. at 82,531 ("Where a disclosure  


made pursuant to this paragraph is required by law, such as in the case of an order from  


a court or administrative tribunal, the minimum necessary requirements in  164.514(d)  


do not apply.").  


           46        U.S. Const. art. VI, cl. 2.  


           47        Allen v. State, Dep't of Health & Soc. Servs., Div. of Pub. Assistance , 203  


P.3d 1155, 1161-62 (Alaska 2009).  


           48        See id. at 1161; HIPAA  264(c)(2).  


                                                                  -11-                                                             7253

----------------------- Page 12-----------------------

                           HIPAA's   preemption   clause   states:     "A   regulation   promulgated   under  

[HIPAA] shall not supercede a contrary provision of State law, if the provision of state                                                                               

law imposes requirements, standards, or implementation specifications that are more                                                                                  

stringent than the requirements, standards, or implementation specifications imposed                                                                          

                                            49   "Contrary . . . means: (1) A covered entity or business associate  

under the regulation."                                                                                                                                        

would find it impossible to comply with both the State and Federal requirements; or  


(2) the provision of State law stands as an obstacle to the accomplishment and execution  


of the full purposes and  objectives of [HIPAA section  264]."50   Applying  the plain  


language of HIPAA's two-part test, the Langdon rule is not preempted because it is not  


contrary to HIPAA.51  


                           First, a covered entity would not "find it impossible to comply with both  


                                                                       52  Though HIPAAbroadly prohibits covered entities  



from disclosing health information without the subject's consent,53  HIPAA expressly  


contemplates exceptions to this rule. Specifically, the authorization exception allows for  


"use or disclosure of protected health information" when "a covered entity obtains or  


receives a valid authorization for its use."54                                              Harrold-Jones's treating physician could  


              49           HIPAA    264(c)(2).  

              50           45  C.F.R.     160.202.  

              51           See  Standards  for  Privacy  of  Individually  Identifiable  Health  Information,  

64  Fed.  Reg.   59,918,   59,996   (proposed  Nov.   3,   1999)   ("The  term   'contrary'   appears  

throughout  [HIPAA]  and  is  a  precondition  for  any  preemption  analysis  done  under  that  


              52           45 C.F.R.  160.202.  



              53           Id.   164.502(a).  


              54           Id.   164.508(a)(1).  


                                                                                    -12-                                                                             7253

----------------------- Page 13-----------------------

thus comply with "both the State and Federal requirements" if Harrold-Jones voluntarily                                                                            


consented to ex parte contact through HIPAA's authorization exception.                                                                                                              

                                                                                                                                                             Similarly, the  


litigation  exception  provides  that  a  "covered  entity  may  disclose  protected  health  


information in the course of any judicial or administrative proceeding" in response to a  

                         56    Ex parte contacts under Alaska law are unquestionably "in the course of  


court order. 

a[]  judicial  proceeding";57                               Denali  could  therefore  obtain  a  court  order  authorizing  


Harrold-Jones's treating physician's ex parte contact with Denali's counsel. Given these  


exceptions, a covered entity would not "find it impossible to comply with both the State  


and Federal requirements."58  


                             Second, the Langdon rule is not an "obstacle to the accomplishment and  


execution of the full purposes and objectives of [HIPAA section 264]."59  HIPAA section  


264 directed HHS to promulgate regulations addressing:  (1) "rights that an individual  


who  is  a  subject  of  individually  identifiable  health  information  should  have";  


               55            See    Murphy    v.    Dulay,                              768         F.3d         1360,   1374                    (11th.          Cir.        2014)  

("Accordingly, no other HIPAA exception for disclosure needs to be satisfied once an                                                                   

individual signs a valid written authorization.");                                                    Arons v. Jutkowitz                    , 880 N.E.2d 831,842                   

(N.Y.   2007)   ("After   plaintiffs   declined   to   sign   [HIPAA-compliant]   authorizations,  

defendants asked the trial courts for orders compelling them to do so, and the courts                                                                                        

granted these requests.                            This was entirely proper.").            

               56            45 C.F.R.  164.512(e)(1).  


               57            See Trans-World Invs. v. Drobny, 554 P.2d 1148, 1152 n.15 (Alaska 1976)  


("[T]he filing of the personal injury suit is the operative fact of waiver."); see also  


Proceeding, BLACK 'S   LAW   DICTIONARY   (10th ed. 2014) ("The regular and orderly                                                                                       


progression    of    a    lawsuit,    including    all    acts   and    events    between    the    time    of  

commencement and the entry of judgment.").                             

               58            See 45 C.F.R.  160.202.  


               59            Id.  

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----------------------- Page 14-----------------------

(2)  "procedures that should be established for the exercise of such rights"; and (3) "uses                                                


and disclosures of such information that should be authorized or required."                                                                HHS  


responded by promulgating a rule that contained no mention of ex parte contact and did  

                                                                                                                                           61  In  


not explicitly prevent states from conditioning lawsuits on authorization waivers. 

fact,  the  rule  allowed  states  to  condition  public  benefits  on  the  execution  of  an  


authorization.62              HHS's  allowance  of  public  benefit  conditions  -  while  failing  to  


precludeconditionsonlawsuitsandonly specifically prohibitingconditionsonproviding  


treatment - suggests that compelling allowance of ex parte contact with a plaintiff's  


treating physician is not an "obstacle to the accomplishment and execution of the full  


purposes  and  objectives  of  [HIPAA]."63                                  Therefore,  because  a  plaintiff's  treating  


physician can make ex parte contact in Alaska without violating HIPAA or frustrating  


its full purposes and objectives, HIPAA does not preempt Langdon .  


                       Harrold-Jones argues that this conclusion cannot becorrectbecause"[s]tate  


law is preempted unless state law provides for more stringent privacy protections than  


that provided by HIPAA." But Harrold-Jones misconstrues HIPAA. The threshold step  


in conducting HIPAA's preemption analysis is whether the state law is "contrary" to  


           60          HIPAA    264(b)-(c).  

           61          See  45  C.F.R.     164.508(b)(4).  

           62          See  Murphy   v.  Dulay,   768   F.3d   1360,   1375   (11th   Cir.   2014)   ("Had  the  

drafters   of   the   HIPAA   regulations   wished   to   preclude   a   state   legislature   from  

conditioning   a   public   benefit   -   such   as   filing   a   lawsuit   -   on   signing   a   HIPAA  

authorization,  they  could  have  easily  done  so,  just  as  they  generally  prohibited  doctors  

fromconditioningmedical treatment on signing aHIPAAauthorization. Theregulations  



do not do so, and we must give effect to the regulations' silence.").  


           63          45 C.F.R.  160.202.  


                                                                      -14-                                                                 7253

----------------------- Page 15-----------------------

 HIPAA; if the state law is not contrary, no stringency analysis is required.                                                                                                                                                                                                                                                                      Harrold- 

 Jones's stringency argument fails.                                                                                              

                                                           We therefore conclude that HIPAA does not preempt our existing case law                                                                                                                                                                                                                                            

 allowing ex parte contact between defense counsel and a plaintiff's treating physician.                                                                                                                                                                                                                                                        

                              C.	                           Ex   Parte   Contact   Over   The   Plaintiff's   Objection   Is   No   Longer  

                                                           Appropriate Under Alaska Law.                                                                                                     

                                                            Our analysis does not end there. Although the Supremacy Clause may not                                                                                                                                                                                                                                              

 forbid ex parte contact in Alaska, HIPAA embodies a cultural shift in how medical                                                                                                                                                                                                                                                                       

 privacy is viewed and has created a new procedural framework for sharing medical                                                                                                                                                                                                                                                                        

 information in litigation. Having considered HIPAA's underpinnings and reviewed this                                                                                                                                                                                                                                                                                         

 new framework, the legal basis for our ex parte contact jurisprudence, and how ex parte                                                                                                                                                                                                                                                                                

 contact operates under this new framework, we no longer are convinced that unrestricted                                                                                                                                                                                                                                                  

 ex parte access to a plaintiff's treating physician over the plaintiff's objection should be                                                                                                                                                                                                                                                                                      


                                                            Our decision is informed both by HIPAA and the original rationale of the                                                                                                                                                                                                                                            

Langdon   rule.     We   first   articulated   the   reasoning behind                                                                                                                                                                                                    Langdon   in   Trans-World  

Investments v. Drobny                                                                               , where we noted:                                                               "We find no legal impediments . . . limit[ing]                                                                                                       

 informal   methods   of   discovery,   such   as   private   conferences   with   the   attending  

 physicians[;] . . . .           such informal methods are to be encouraged, for they facilitate early                                                                                                                                                                                                                                                                  

 evaluation and settlement of cases, with a resulting decrease in litigation costs, and                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                     64   We reaffirmed Drobny in  

 represent further the wise application of judicial resources."                                                                                                                                                                                                                                                                                                                       

Arctic Motor Freight, Inc. v. Stover , explaining that "the filing of a personal injury action  


 by the plaintiff results in a waiver of his physician-patient privilege as to all information  


 concerning his health and medical history relevant to the matters which he has placed in  


                              64                            554 P.2d 1148, 1151-52 (Alaska 1976).  


                                                                                                                                                                                       -15-                                                                                                                                                                                                  7253  

----------------------- Page 16-----------------------


issue in the litigation."                                         The  Langdon  rule thus began with our recognition that waiver                                                                                       

of the physician-patient privilege removed any barrier to informal contact between a                                                                                                                                                  

plaintiff's treating physician and defense counsel.                                                             

                                    That rationale is no longer sound in light of HIPAA.                                                                                         As explained above,                    

a plaintiff's treating physician could disclose protected information in compliance with                                                                                                                                     

HIPAA in one of two ways:                                                   either the plaintiff could sign an authorization allowing the                                                                                        

                                                                                                                                    66 or the trial court could issue an order  

physician to disclose protected health information                                                                                                                                                                         

authorizing the physician to disclose protected health information.67                                                                                                                       But both options  


come with procedural barriers requiring trial court intervention, thus eroding any rule  


based on a lack of "legal impediments in existence which limit informal methods of  



                                    First, the authorization exception is limited by the plaintiff's federal right  


to revoke authorization at any time.69  The right to revoke was specifically included to  

                                                                                                                  70  And because the scope of disclosure under  

ensure that all authorizations are voluntary.                                                                                                                                                                             


                  65                571  P.2d   1006,   1008  (Alaska   1977).  

                  66                See  45  C.F.R.     164.508(a)(1).  

                  67                See  id.     164.512(e)(1).  

                  68                See  Drobny,  554  P.2d  at   1151.  

                  69                See  45  C.F.R     164.508(b)(5).  

                  70                See  Standards  for  Privacy  of  Individually  Identifiable  Health  Information,  

65  Fed.  Reg.   82,462,   82,657-58  (Dec.  28, 2000)  (explaining  that  HHS  "intend[s]  the  


authorizations required under this rule to be voluntary for individuals" and that "this                                                                                                                                     

right   [to   revoke   an   authorization   at   any   time]   is  essential   to   ensuring   that   the  

authorization is voluntary").  


                                                                                                               -16-                                                                                                         7253

----------------------- Page 17-----------------------


this   exception   is   determined   by   the   language   of   the   release   itself,                                                                                     the   trial   court  

necessarily must - to make the release                                                          truly voluntary - limit the terms of a disputed                                           

release to those necessary to effectuate the litigation.                                                                            The trial court must be active,                             

understand   the   nature   of   the   litigation,   and   hear   the   parties'  arguments   to   craft   an  

appropriate release; we decline to adopt a rule by judicial fiat requiring that a personal                                                                                                

injury plaintiff submit a broad medical release that includes allowing ex parte contact                                                                                                       

                                                                                                                                                             72     The authorization  

with the plaintiff's doctors as a condition of bringing a lawsuit.                                                                                                              

exception therefore cannot be relied on to preserve ex parte contact without judicial  



                                Second, the litigation exception is limited by the court order requirement.  


The litigation exception allows for disclosures either by court order or "[i]n response to  


                                                                                                                                                    73        The  latter  category  

a  subpoena,  discovery  request,  or  other  lawful  process."                                                                                                                          


contemplates formal procedure:  subpoenas, discovery requests, and lawful process are  


                                                                                74   And HIPAA's satisfactory assurances requirement,  

all mechanisms under court rules.                                                                                                                                                 


                71              See supra                p. 8 and n.32.        

                72              Some states' legislatures have enacted a standard release that a plaintiff                                                                                 

must sign to bring a personal injury suit.  See Murphy v. Dulay, 768 F.3d 1360, 1375  


(11th Cir. 2014) (Florida);                                    Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs.,                                                                     

Inc., 418 S.W.3d 547, 557-58 (Tenn. 2013);                                                                  In re Collins, 286 S.W.3d 911, 920 (Tex.                                    

2009).    As in these jurisdictions, Alaska's legislature could enact a law requiring a                                                                                                                     

standard release that would not be preempted by HIPAA.  But even were the legislature  


to do so, trial courts would have to interpret disputed language in the release, and the  


problem we have identified would remain unresolved.  


                73              45 C.F.R.  164.512(e)(1)(i)-(ii).  


                74              See Caldwell v. Chauvin, 464 S.W.3d 139, 151-53 (Ky. 2015) (holding ex  


parte interviews were available pursuant to court order but "do not come within the  


meaning of lawful processas used in 45 C.F.R.  165.512(e)(1(ii)").  We agree with the  



                                                                                                   -17-                                                                                             7253

----------------------- Page 18-----------------------

requiring the requesting party or covered entity to obtain a qualified protective order or                                                    


give notice so the plaintiff can do the same,                                                                                                 

                                                                            expressly contemplates court oversight of  


the discovery process.  Ex parte interviews, which are defined by their informality and  

                                       76  cannot operate as "other lawful process" under HIPAA.  



lack of court oversight, 

                      This leaves the court order as HIPAA's last acceptable option,  which  


necessarily requires court oversight of the ex parte contact process.  But like a court  


dispute over the terms of a "voluntary" authorization, a court's time, expense, and energy  


to weigh the terms of an ex parte contact and to issue an appropriate order limiting the  


contact's scope completely undermine the original rationale for ex parte contact as a  


cost-saving mechanism.  At that point the court is effectively issuing discovery orders,  


as with any other discovery dispute. The purpose of Langdon 's informal discovery was  


to "further the wise application of judicial resources," allowing parties to evaluate claims  


and defenses without involving the court.77                               But complying with HIPAA, at least when  


                                       78 necessarily involves court time and expense. These limitations  

the parties do not agree,                                                                                                       


           74          (...continued)  


Caldwell court that "lawful process" is best read as meaning a court procedure like a  


summons, and cannot simply mean "any action that is not illegal."  Id. at 152.  Contra  


Holman v. Rasak, 785 N.W.2d 98, 106 (Mich. 2010) ("[A] request for an ex parte  


interview is at least 'other lawful process' within the meaning of [HIPAA].").  

           75         See supra p. 9-10.  


           76         See Langdon v. Champion, 745 P.2d 1371, 1374 (Alaska 1987) (describing  


ex parte interviews as "informal private conferences").  


           77         Id. at 1373 (quoting Trans-World Invs. v. Drobny, 554 P.2d 1148, 1151-52  


(Alaska 1976)).  


           78         Nothing in this opinion should be construed as preventing a plaintiff from  


voluntarily executing an acceptable authorization allowing ex parte contact.  We hold  



                                                                     -18-                                                               7253

----------------------- Page 19-----------------------

makeour current ex parte contact system,                             though compatiblewith HIPAAin theabstract,                      


a poor discovery mechanism.                                                                                                                  

                                                       We therefore consider overruling Langdon under our  


traditional stare decisis analysis.  


                       "Wewilloverruleaprior decisiononly when clearly convinced that therule  


was originally erroneous or is no longer sound because of changed conditions, and that  

more good than harm would result from a departure from precedent."80  As explained,  

the Langdon rule no longer is sound because of changed conditions, namely Congress's  


enactment of HIPAA.  Considering whether more harm than good would result from  


overruling Langdon, we conclude that it would be better to move forward with a rule that  


is more consistent with current views on medical privacy and that will ensure trial courts  


are more focused on complying with HIPAA.  We also note other courts' view that ex  


parte  contact  undermines  the  fiduciary  relationship  between  treating  physician  and  


patient-plaintiff and presents opportunities for abuse that must be curbed by judicial  


           78          (...continued)  


only that trial courts should abstain from compelling an authorization over a plaintiff's  


           79         See Sorensen v. Barbuto, 177 P.3d 614, 619 (Utah 2008) ("[A]ppropriately  


limiting the scope of a treating physician's disclosure requires judicial monitoring that  


cannot occur in the context of ex parte communications.").  


           80          Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska  


2004) (quoting State, Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859  


(Alaska 2003)).  


                                                                     -19-                                                                7253

----------------------- Page 20-----------------------


 oversight.                                                              We conclude that, absent agreement between the parties, medical discovery                                                                                                                                                                                                                                                                                                                                      

 should be conducted through the formal discovery rules rather than ex parte contact.                                                                                                                                                                                                                                                                                                                                                                                                 

                                                                                  We therefore overrule                                                                                                                         Langdon 's general approval of defense ex parte                                                                                                                                                                                                                                    

 contacts with a plaintiff's treating physicians as an informal discovery device in the                                                                                                                                                                                                                                                                                                                                                                                                                                       

normal course of litigation and agree that a plaintiff should not be compelled to authorize                                                                                                                                                                                                                                                                                                                                                                                               

 such ex parte contacts.                                                                                                                             We believe that formal discovery methods are more apt to                                                                                                                                                                                                                                                                                                                        

 comply with law and promote justice in the vast majority of cases and that there will be                                                                                                                                                                                                                                                                                                                                                                                                                                           

 few, if any, extraordinary situations in which an ex parte contact authorization order is                                                                                                                                                                                                                                                                                                                                                                                                                                              

necessary under HIPAA's litigation exception.                                                                                                                                                                                                                                                      

                                         D.	                                      It Was Error To Grant The Motion To Compel The Medical Release                                                                                                                                                                                                                                                                                                                                                 

                                                                                  In This Case.                                     

                                                                                  Applying   this   standard,   the   circumstances   of   this   case   are   far   from  

 extraordinary.   In fact, the only thing extraordinary is the breadth of Denali's requested                                                                                                                                                                                                                                                                                                                                                                                            

release for medical review.                                                                                            

                                                                                  Harrold-Jones is seeking compensation for medical malpractice in treating                                                                                                                                                                                                                                                                                                                                          

her clavicle fracture.                                                                                                                In response Denali asked Harrold-Jones to execute an almost                                                                                                                                                                                                                                                                                                       

unrestricted release for her "complete medical record or designated record set, which                                                                                                                                                                                                                                                                                                                                                                                                                       

 includes any and all information which is relative to [her] past or current physical or                                                                                                                                                                                                                                                                                                                                                                                                                                             

mental medical condition."                                                                                                                                                 This expressly included records of psychiatric treatment,                                                                                                                                                                                                                                                

psychological treatment, and drug and alcohol treatment, and would have authorized                                                                                                                                                                                                                                                                                                                                                                                              

                                         81                                       See, e.g.                                          ,  Duquette v. Superior Court                                                                                                                                               , 778 P.2d 634, 640 (Ariz. App. 1989)                                                                                                                                                          

 ("We believe that ex parte communications between defense attorneys and plaintiffs'                                                                                                                                                                                                                                                                                                                                                                                                 

treating physicians would be destructive of both the confidential and fiduciary natures                                                                                                                                                                                                                                            

 of the physician-patient relationship . . . .");                                                                                                                                                                                                                                Sorensen, 177 P.3d at 619 ("Allowing ex                                                                                                                                                                                                            

parte communications between a treating physician and opposing parties in litigation                                                                                                                                                                                                                                                                                                                                                                                                      

would   undermine   the   physician-patient   relationship   because   patients  would   lack  

 adequate assurance that their candid responses to questions important to determining                                                                                                                                                                                                                                                                                                                                                                                  

their appropriate medical treatment would remain confidential.").                                                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                              -20-	                                                                                                                                                                                                                                                    7253

----------------------- Page 21-----------------------

Harrold-Jones's "physicians and other health care providers to discuss [her] history, care                                                                                                                                                                                                                                                                                                                                                   

 and treatment and prognosis" with Denali's counsel.                                                                                                                                                                                                                               There was no special showing of                                                                                                                                    

need for this request, nor did anything in the record suggest an ex parte interview with                                                                                                                                                                                                                                                                                                                                                 

Harrold-Jones's treating physician was necessary for a just adjudication.                                                                                                                                                                                                                                                                                                                   

                                                                      It was error to grant the motion to compel Harrold-Jones to "voluntarily"                                                                                                                                                                                                                                             

 execute the tendered release.                                                                                                                              Any further discovery of information within Harrold-                                                                                                                                                                                                  

Jones's new doctor's possession should proceed under the formal discovery rules and in                                                                                                                                                                                                                                                                                                                                                                  

 strict compliance with HIPAA.                                                                                        

V.                                 CONCLUSION  

                                                                      We   REVERSE   the   superior   court's   order   and  REMAND   for   further  

proceedings consistent with this opinion.                                                                                                                                                                             82  

                                   82                                 We also granted review on what a plaintiff could require be included in a                                                                                                                                                                                                                                                                                                            

HIPAA-compliant release before agreeing to sign it and when under HIPAA a qualified                                                                                                                                                                                                                                                                                                                          

protective order must be issued.  Because we conclude that we should overrule our ex                                             

parte contact case law in light of HIPAA, we do not address these questions in this                                                                                                                                                                                                                                                                                                                                                          


                                                                                                                                                                                                                       -21-                                                                                                                                                                                                              7253

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