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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.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                          

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                             

           corrections@akcourts.us.  



                       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  

                                                                  )  

           v.                                                                               

                                                                  )    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,  

                      Judge.  



                                                                                                      

                      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-----------------------

I.        INTRODUCTION  



                    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.  

                                                                                                                          



II.       FACTS AND PROCEEDINGS  

                                 



                    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
  


----------------------- Page 3-----------------------

                             1  

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
  


----------------------- Page 4-----------------------

                           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                                                              



                                                                                                                                    4  

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

                                                                                                                                       The "interpretation  



                                                                                 5  

                                                                                                                                                                    

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



                                                                        6  

                                                                                                                                                          

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



                                                                                                                                                      7  

                                                                                                                                                          

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  



                                                                        8  

                                                                                                                                                       

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  



2003)).  



             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                                                                                                                     



                                                               9  

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  



                                                                                                                                                                                                                12  

                                                                                                                                                                                                                     a  

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                                                                                                                             

U.S.C.).  



                 10              Id.   261-62, 264.  

                                                                       



                 11              Id.   264.  

                                             



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

                                                                                           



                                                                                                         -5-                                                                                                7253
  


----------------------- Page 6-----------------------

                        1.          Overview of privacy protections         



                        HIPAA's privacy framework begins with express preemption.                                                            HIPAA  



                                                                                                                                          13  

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  



                                                                                                            14  

                                                                                                    

accomplishment of the full purposes of HIPAA section 264. 



                                                                                                                                                    

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



                                                                       15 

                                                                                                                                             

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



          16                                                 17                                                        18  

entity                                                                                                                                               

               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).      



            14  

                                                                                                                                                        

                        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  

                                                                                                                                                      

[HIPAA].").  



            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-----------------------

                                                                                                                                                           19  

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



                                                                                          20  

                                                                                                                                                          

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                 



                                                         24  

                                                                                                                                                           

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).        



            20  

                                                                                                                                                         

                        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.  

    

 164.502(a)(2).  



            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  

                                                                                                                                                      

                                                                                                                                   (continued...)  



                                                                           -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  



                                                                                                                                                                                                                        34  

                                                                                                                                                                                                                               

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  



                                                                                                                                                                                                                        35  

                                                                                                                                                                                                                               

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).        



                 34  

                                                                                                                                                                                            

                                  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
  


----------------------- Page 10-----------------------

                                                                                     37  

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
  


----------------------- Page 11-----------------------

                         42  

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



                     43                                                             44  

requirements                                                                                                                 

                        do not apply tothelitigation exception                        because"theindividual exercises  



                                                                                                                                      

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

proceeding."45  



           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  

                                                                                                                                    This  



                                                                                                                               

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  



                                        47  

                                                                                                                                       

                                           HIPAA contains express preemptive language; therefore the  

the entire regulated field. 



                                                                           48  

                                                                    

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  

theStateandFederalrequirements."                                                                                                                                 

                                           

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  

section.").  



              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                                                                            



                                                                                                                                                        55  

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.  



                                                                                         -13-                                                                                  7253
  


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

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



                                                                                                                                     60  

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                                                                                                                                                                                                                                                                                      



 allowed.  



                                                            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-----------------------

                                                            65  

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  

                                                                                                                                                                                                                                   

discovery."68  



                                    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-----------------------

                                                                                                                                                                       71  

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  

                                                                                                                                                                                             



oversight.  



                                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  

                                                                                                                                                                                                         

                                                                                                                                                                                (continued...)  



                                                                                                   -17-                                                                                             7253
  


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

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



                                                                       75  

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  

                                                                                                                                          

                                                                                                                          (continued...)  



                                                                     -18-                                                               7253
  


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

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



                                                  79  

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  

objections.  



           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-----------------------

                                                              81  

 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                                                                                                                                                                                                                                                                                                                                                          

 opinion.  



                                                                                                                                                                                                                       -21-                                                                                                                                                                                                              7253
  

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