On Thursday, the court issued a memorandum opinion and order in a case brought against Spring View Physician Practices LLC et al. The original complaint filed in the Western District of Kentucky alleged inappropriate touching as a part of medical examinations and included counts of battery, outrage, negligence, and negligent selection, retention, supervision, and training against the doctor and the medical practice. The opinion resolved issues regarding discovery and motions from the defense claiming that the materials were protected under various privacy categories.
The plaintiff alleged inappropriate touching occurred during two appointments in January, 2018. After filing suit, the parties engaged in discovery, but the defendants moved for a protective order regarding certain documents. They alleged that the documents were privileged and confidential, based on Kentucky Rules of Evidence 311.377, Kentucky Rules of Evidence 503, Federal Rules of Evidence 407, Federal Rules of Evidence 404, and HIPPA.
Kentucky Rules of Evidence 311.377, covering materials prepared by an employee for the purposes of quality control being confidential work product, presented a new interpretation before the court. The Kentucky Legislature recently amended the statute by adding “including but not limited to medical malpractice actions[.]” in response to prior court decisions holding that it did not apply. However, the court noted specifically that while the work product itself was confidential, the materials used to generate the report was not and was discoverable. The court also held that materials were not automatically confidential under attorney-client privilege as there was no attorney communication involved in the preparation.
The medical practice argued that the documents were subject to a confidentiality agreement between the doctor and the practice. The court confirmed that such confidentiality agreements between co-defendants cannot defeat the discovery process and would only be held valid as between the parties to the agreement. The court also noted that while evidence of prior bad acts may not be admissible during the trial, the admissibility is not determinative to whether the information can be discovered. Finally, the court noted that while HIPAA does protect identifying information in medical records, that standard can be overcome in situations where there is direct probative value to a case and that HIPAA permits medical practices to comply with court orders regarding discovery.