We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background. Onscreen was a popular cable reality franchise involving wealthy denizens of a gated community in Southern California. The heated argument du jour involved one resident’s decision to speak privately to another about a third, during which exchange B-to-C confidences may or may not have been disclosed to A. The original confider was adamant that the information was hers alone to control, insisting that the private conversation should not have occurred. Much perfectly-coiffed shrieking ensued.
We were reminded of this spectacle as we read the decision of the Kentucky Supreme Court in Caldwell v. Chauvin, — S.W. 3d. –, 2015 WL 3653447 (Ky. June 11, 2015). In Caldwell, the underlying medical malpractice action involved plaintiff’s claim that her spinal surgery was unnecessary and negligently performed and caused her permanent injuries. In the course of discovery, defendant moved for a qualified protective order permitting him to make ex parte contacts with plaintiff’s healthcare providers. The court entered an order permitting such contacts but expressly declining to authorize disclosure of plaintiff’s health information. The order “also explicitly stated it was [not] requiring any physician to speak with [defendant] . . . , noting [that] the treating physicians [were] free to accept of decline counsel’s request as they [saw] fit.” Id. at *2 (internal punctuation omitted). Plaintiff sought a writ of prohibition from the Court of Appeals. The Court of Appeals declined to issue the writ, holding: 1) no Kentucky law prohibits the trial court from authorizing ex parte communications with non-expert treating physicians; and 2) the order did not violate any privacy right plaintiff might have because it did not compel the disclosure of any information. Id.