Released for Publication July 2, 2015.
[Copyrighted Material Omitted]
ON APPEAL FROM COURT OF APPEALS. CASE NO. 2014-CA-000456-OA. JEFFERSON CIRCUIT COURT NO. 09-CI-007369.
COUNSEL FOR APPELLANT: Eric M. Lamb, Lamb & Lamb, PSC; Erwin A. Sherman, Sherman and Osborne.
APPELLEE: Judge Arch Cox McKay Chauvin, Jefferson Circuit Court, Division 8.
COUNSEL FOR REAL PARTY IN INTEREST, DR. FRANK P. CASTRO, D/B/A PALO ALTO SPINE, LLC: Donald Kenneth Brown, Jr., Casey Alan Krill, Mark Edward Hammond, Robert Clayton Veldman, O'Bryan, Brown & Toner, PLLC.
COUNSEL FOR AMICUS CURIAE KENTUCKY JUSTICE ASSOCIATION: H. Philip Grossman, Grossman & Moore, PLLC; Paul A. Casi, II, Jeffrey Wayne Adamson, Paul A. Casi, II, P.S.C.; Kevin Crosby Burke.
COUNSEL FOR AMICUS CURIAE KENTUCKY DEFENSE Bradley A. Case, Dinsmore & Shohl, LLP.
All sitting. All concur.
Keller, J., concurs by separate opinion in which Barber and Noble, JJ., join.
MINTON, CHIEF JUSTICE.
Litigants have historically been permitted to conduct ex parte interviews with
fact witnesses. These interviews serve various purposes but are mainly directed at investigating the facts of the case and curtailing litigation costs by allowing litigants to gauge the usefulness of a witness's potential testimony by interviewing the witness before paying for a discovery deposition.
Whether this time-honored method of informal discovery extends to the plaintiff's treating physicians and what role the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) plays in regulating these interviews has been an issue across the country for some time. And the issue has come before many of Kentucky's circuit courts and the federal courts in both the Western and Eastern Districts of Kentucky. Today we decide conclusively whether litigants in Kentucky may, and under what conditions, engage in ex parte interviews with treating physicians.
In an original action before the Court of Appeals, Stacey Caldwell, the plaintiff in the underlying medical-malpractice action, sought a writ of prohibition preventing the trial court from enforcing its order permitting counsel for Dr. Frank Castro, the defendant in the underlying action, to contact Caldwell's treating physicians ex parte. Importantly, no provision in the trial court's order compelled any physician to have contact with Castro's counsel or disclose any information, nor did it authorize disclosure of protected health information; whether or not to disclose any information was left to the treating physician's discretion. Before the Court of Appeals, Caldwell argued that because she was entitled to confidentiality in her communications with her healthcare providers, the trial court's order permitting ex parte contact with those providers was in error.
The Court of Appeals declined to issue a writ because it found Caldwell did not have a right to confidentiality in her communications with her treating physicians. As a result, the Court of Appeals concluded the trial court's order was not erroneous.
Based on our review of Kentucky and federal law, we conclude that no law inhibits litigants from seeking ex parte interviews with the opposing party's treating physicians. But the disclosure of medical information during those ex parte meetings is controlled by HIPAA. For disclosure to be permitted, the party must first obtain a court order authorizing disclosure in a voluntary ex parte interview. Upon review of the instant order, it is clear the trial court declined to authorize ex parte disclosure of Caldwell's health information thus failing to satisfy HIPAA. But because the trial court is explicit in its refusal to authorize ex parte disclosures, we find it unnecessary to issue an extraordinary writ.
I. FACTUAL AND PROCEDURAL HISTORY.
The underlying litigation stems from a discectomy Castro performed on Caldwell.
Caldwell had a long history of spinal problems predating the procedure, but she alleges the surgery was unnecessary and negligently performed. Caldwell claims she suffered painful nerve damage and restricted mobility because of this surgery.
During the course of discovery and after obtaining Caldwell's medical records, Castro moved the trial court to enter a qualified protective order permitting him to make ex parte contacts with Caldwell's healthcare providers. Following a hearing, the trial court concluded there is no bar prohibiting Castro's counsel from contacting ex parte Caldwell's healthcare providers because they are ultimately fact witnesses and the information they possess is not subject to an evidentiary privilege. The trial court's order limited the scope of Castro's counsel's permissible ex parte contacts to those physicians who treated Caldwell " for the injuries that are the subject matter of this litigation" but expressly declined to authorize disclosure of Caldwell's health information. The court's order also explicitly stated it was neither requiring any physician to speak with Castro nor compelling disclosure of any information to Castro, noting the " treating physicians are free to accept or decline counsel's request as they see fit."
Caldwell filed a petition for a writ of prohibition and a motion for intermediate relief with the Court of Appeals. In her petition, Caldwell argued, as she does now, she was entitled to a writ because the trial court's order violated the physician-patient privilege, her right to confidentiality in her communications with her doctors, and the order was not authorized by federal law. The Court of Appeals denied her motion for intermediate relief without discussion. It also omitted analysis of the writ prerequisites and proceeded directly to the merits of her allegation of error.
Upon reaching the merits, the Court of Appeals declined to issue a writ and presented two main reasons for so holding. First, it concluded no Kentucky law prohibits the trial court from authorizing ex parte correspondence with nonexpert treating physicians. And second, the Court of Appeals reasoned the trial court's order did not violate any right Caldwell may have to privacy of her medical information because the order does not compel any disclosure. The court declined to address the impact of HIPAA's privacy regulations on Castro's ability to communicate ex parte with Caldwell's physicians, deciding " the order of the trial court relied solely upon Kentucky authority."
Caldwell appeals that denial to this Court as a matter of right.
The issuance of a writ is an extraordinary remedy that is disfavored by ourjurisprudence. We are, therefore, " cautious and conservative both in entertaining
petitions for and in granting such relief." 
A writ of prohibition may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.
Caldwell makes no proper argument that the trial court was without jurisdiction to enter the challenged discovery order. She seeks the second class of writ. And when seeking a writ of the second class, a petitioner must first show she has no adequate remedy by appeal or otherwise. If this requirement can be met, the petitioner must then show she will suffer great injustice or irreparable harm absent the issuance of a writ. This has consistently been defined as injury of a " ruinous nature." 
The latter requirement is not absolute, however. In what has come to be known as the " certain-special-cases exception," our precedent allows waiver of the great injustice and irreparable harm element in cases where the instant harm may not rise to the level of irreparable but a " substantial miscarriage of justice will result if the lower court is proceeding erroneously, and correction of the error ...