holding that neither Kentucky law nor HIPAA prohibits ex parte interviews
How later courts described this case
- holding that neither Kentucky law nor HIPAA prohibits ex parte interviews
- holding ex parte interviews were available pursuant to court order but "do not come within the meaning of lawful process as used in 45 C.F.R. § 165.512 (e)(1)(ii)"
- finding that Kentucky law did not prohibit ex parte interviews by defendants with a plaintiff‟s treating physicians, and that HIPAA also did not prohibit such interviews
- holding that the federal Health Insurance Portability and Accountability Act (HIPAA) does not create a privilege prohibiting interviews of nonexpert treating physicians
Written by the judges who cited it.
The opinion
KELLER, J.,
CONCURRING:
‘ I concur with the result of the majority opinion but'write separately because I believe that it is time for Kentucky to adopt a general physician-patient privilege. As the majority states, “We have heretofore not identified a cognizable right to a privilege in medical communications and again decline to do so today.” • That statement iS‘ only partially correct. KRE 507 recognizes that communications between a psychotherapist and patient are privileged. A psychotherapist is defined, in part, as “[a] person licensed by the state of Kentucky, .or by the laws of another state, to practice medicine .... while engaged in the diagnosis or treatment of a mental condition.” KRE 507(2)(A) (emphasis added). Thus, Kentucky does recognize that medical communications are privileged as long as they occur within the mental health setting. It is understood that sensitive and highly personal information is exchanged between a patient and his or her psychotherapist. Likewise, a patient being treated by a physician for purely physical ailments must reveal sensitive health information in order to facilitate treatment. I can discern no logical reason for the exclusion of medical communications regarding physical health from privilege when communications regarding mental health are privileged.
I note that the other privileges in Article V of the’ KRE, with the exception of the spousal privilege, prohibit disclosure, not just testimony. Therefore, a general physician-patient privilege should, if similar to the psychotherapist-patient privilege, also prevent disclosure of privileged communications unless a patient places her medical condition into controversy and the information is obtained in conformity with the rules of procedure.
Barber and Noble, JJ., join.