Missouri and Kansas Law Differ Regarding Ex Parte Contact with Physicians

Nearly every ex parte conversation about a patient’s health is prohibited in Kansas and Missouri. Notwithstanding, physicians who practice medicine in both states are faced with conflicting rules relating to ex parte conversations in the context of litigation involving a patient. Physicians must do their level best to educate themselves on their ethical responsibilities owed to their patients despite conflicting rules to avoid a HIPAA violation, which is a federal crime. Furthermore, a HIPAA violation can lead to sanctions on the physician’s license. Consequently, the careful physician must consult a professional licensing attorney to avoid HIPAA violations. Professional licensing attorney Danielle Sanger who is admitted to practice in Missouri and Kansas, possesses the knowledge and experience to advise you how to ethically resolve the issue.

The ethical conundrum for physicians licensed in both states is caused by conflicting treatment of HIPAA’s privacy rules in the context of third-party contact with physicians regarding a patient’s claims. In a recent decision from the United States District Court for the District of Kansas, a magistrate judge ordered a plaintiff to execute a HIPAA-compliant medical authorization granting permission to the defendant’s attorneys to conduct third-party conversations with the plaintiff’s treating physicians. The plaintiff objected to the defendant’s motion to endorse an authorization allowing the defendant’s attorneys to interview her treating physicians.  The plaintiff sought to quash the defendant’s motion by arguing that Missouri law, rather than Kansas law, must apply, and therefore under Missouri law, such a practice would be prohibited.

The magistrate judge disagreed with the plaintiff. The judge ruled that Kansas law applied rather than Missouri law. The judge further ruled that Kansas law, although recognizing a patient–physician privilege, specifically excluded patient–physician communications where the patient placed her condition in issue in litigation. This guided the court in ruling that HIPAA specifically allowed third-party conversations if the request otherwise complied with state requirements to obtain medical information from healthcare providers and the healthcare providers are given notice that they may decline to be interviewed. The magistrate judge, further construing Kansas law, noted that ex parte conversations with a physician are permitted by Kansas law and “may be regarded as ‘in the course of’ a judicial proceeding.”

The Supreme Court of Missouri, on the other hand, construes HIPAA, and therefore Missouri law, to prohibit ex parte contact. The Missouri Supreme Court, in an analogous situation to the case referenced above, analyzed whether HIPAA, a federal law, pre-empted state discovery rules in litigation.  The court held that HIPAA did pre-empt state law. Specifically, the Court found that HIPAA allowed disclosures of protected information through discovery or other “formal court procedures.”  In the context of discovery of protected medical information, a Missouri court has “authority and oversight” over proceedings in court and proceedings conducted under formal discovery rules. An ex parte conversation with a physician is not a formal discovery tool authorized by the Missouri Rules of Civil Procedure. Additionally, Missouri courts have no authority to compel a physician to engage in ex parte communications or to compel a plaintiff to specifically authorize such communication.

The Missouri Supreme Court ultimately decided that ex parte communications are specifically prohibited by HIPAA. The Court reasoned that ex parte communications are beyond judicial supervision and therefore, a trial court had no jurisdiction to rule on “informal ex parte communications” with the plaintiff’s physicians who are not parties to the litigation. The Court offered some guidance to Missouri physicians. The Court opined that physicians can comply with HIPAA by declining to an ex parte interview unless their patient gives appropriate authorization. Of course, the physician is free under Missouri common law to decline to be interviewed.

Consult With A Knowledgeable and Experienced Professional Licensing Attorney

Kansas Professional Licensing Attorney Danielle Sanger has the best interests of professional licensees in mind. Consult attorney Sanger if you or your staff has any questions or concerns regarding the scope of disclosures that you may lawfully make. Call professional licensing attorney Danielle Sanger at 785-979-4353 immediately to schedule your free consultation.