Ex parte FreudenbergerAnnotate this Case
Defendants Curt Freudenberger, M.D., and Sportsmed Orthopedic Surgery & Spine Center, P.C. petitioned the Alabama Supreme Court for a writ of mandamus to direct the Madison Circuit Court to vacate its October 10, 2019, protective order to the extent it imposes conditions upon ex parte interviews defense counsel intends to conduct with physicians who treated one of the plaintiffs, Rhonda Brewer, in connection with her injuries. In August 2019, Rhonda and her husband, Charlie, sued Dr. Freudenberger and Sportsmed Orthopedic (collectively, "defendants"), asserting claims of medical malpractice based on injuries Rhonda allegedly suffered during the course of a surgical procedure performed by Dr. Freudenberger. Charlie also asserted a claim of loss of consortium. Before discovery, defendants moved for the entry of a "qualified protective order," pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), and filed a proposed order with their motion. The trial court entered a qualified protective order authorizing the disclosure of Rhonda's protected health information; the order, however, imposed conditions on defense counsel's contacts with her treating physicians. Defendants moved the trial court to reconsider its order, contending that Alabama law allowed ex parte interviews with treating physicians, that HIPAA did not prohibit ex parte interviews with treating physicians, and that the restrictions imposed effectively deprived them from conducting ex parte interviews. The trial court denied reconsideration. The Supreme Court determined the trial court exceeded its discretion by requiring the Brewers' counsel to receive notice of, and have an opportunity to attend, ex parte interviews that defense counsel intended to conduct with Rhonda's treating physicians. Accordingly, the additional conditions imposed by the trial court were not justified based on the Brewers' objection that ex parte communications would violate HIPAA and the Alabama Rules of Civil Procedure. The Court granted defendants' petition and issued the writ. The trial court was directed to vacate its order to the extent it imposed conditions upon defense counsel's ex parte interviews with Rhonda's treating physicians.