Larry L. Findley, Jr. v. Billie Findley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 06-266

LARRY L. FINDLEY, JR.

VERSUS

BILLIE FINDLEY

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SUPERVISORY WRITS FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2004-00401
HONORABLE LILYNN CUTRER, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

WRIT DENIED.

Yul D. Lorio
Richard D. Moreno
Doucet, Lorio & Moreno, L.L.C.
One Lakeshore Drive, Suite 1695
Lake Charles, Louisiana 70629
(337) 433-0100
Counsel for Applicant:
Sister Diane Depwe

Evelyn M. Oubre
Attorney at Law
522 Clarence Street
Lake Charles, Louisiana 70601
(337) 436-0337
Counsel for Defendant/Respondent:
Billie Findley

Lee W. Boyer
Stockwell, Sievert, Viccellio, Clements, & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, Louisiana 70602
(337) 436-9491
Counsel for Plaintiff/Respondent:
Larry L. Findley, Jr.

SULLIVAN, Judge.

In this custody matter, a health care provider seeks review of the denial of a

motion to quash a subpoena duces tecum for deposition which sought the disclosure

of medical records of the parties and their children who are her patients. For the

following reasons, the writ is denied.

Facts and Procedural History

On January 16, 2004, Larry Findley, Jr. filed a petition for divorce from his

wife, Billie Findley, and for custody of his four children.1 He alleged that Billie had

mental health problems, had abused the children, and could not take medication

prescribed for her mental health problems because she was pregnant with another

child. Larry, Billie, and all four children were receiving psychological counseling

from Sister Diane Depwe. Shortly after the petition was filed, Billie subpoenaed all

of the Findleys’ records maintained by Sister Depwe. Sister Depwe did not comply

with the subpoena or take any legal action to quash the subpoena; however, the

parties later stipulated for production of the subpoenaed records to counsel for both

parties.

Subsequently, the trial court ordered all the Findleys to be evaluated by another

health care professional. In connection with this court-ordered evaluation, Sister

Depwe was deposed on March 31, 2004. During her deposition, she admitted that she

had not provided a copy of the previously subpoenaed documents to Billie’s attorney;

however, she explained that she believed Larry’s attorney had provided the records

to Billie’s attorney.

Trial began in this matter on December 20, 2004, and Sister Depwe testified

at length that day and the next. Thereafter, testimony was taken in the matter on

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Larry and Billie had three children at that time; Larry’s child from another marriage
resided with them.

June 14 and July 14, 2005. On January 23, 2006, the trial resumed again. The trial

court issued another order for a psychological evaluation of the parties and the

children. Because the parties and the children had continued treatment with Sister

Depwe after the inception of this litigation, Billie’s attorney scheduled her deposition

for February 8, 2006, and subpoenaed the Findleys’ records for production at her

deposition. Sister Depwe did not appear for the deposition and did not produce the

subpoenaed records. Instead, she filed a motion to quash the subpoena because she

“has serious concerns regarding production of the requested documents and

information. Specifically this healthcare professional/counselor is concerned that

production may be detrimental to the health, welfare and status of her client, the

minor child.” The trial court denied the motion to quash. On February 9, 2006, Sister

Depwe filed a notice of her intention to seek writs.

On February 13, 2006, Billie’s attorney filed a subpoena duces tecum, directing

Sister Depwe to produce her records to the court-appointed health care professional.

Sister Depwe received the subpoena on February 22, 2006. She filed another motion

to quash, which the trial court denied. Thereafter, she filed another notice of

intention to seek writs. The two writ applications were consolidated on the motion

of Sister Depwe.

Issues Presented

1) Does this court have jurisdiction to review Sister Depwe’s refusal to
produce her records except as provided in 45 C.F.R. §§ 160 and 164?

2) Is Sister Depwe’s refusal to produce the records at issue justified by
45 C.F.R. § 164.524?

3) Does the Health Insurance Portability and Accountability Act
(HIPAA ), 42 U.S.C. 1320a-1320d-8, preempt Louisiana law?

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Discussion

Jurisdiction

Sister Depwe asserts that this court does not have jurisdiction to consider her

objection to producing the Findleys’ subpoenaed medical records. She cites 45

C.F.R. §§ 160 and 164 in support of her claim but does not direct our attention to any

provision in either of these sections which supports this contention. In Johnson v.

Parker Hughes Clinics, 2005 WL 102968 (D.Minn. 2005) (not reported in

F.Supp.2d), the court noted that a state court does have jurisdiction to determine the

relationship between state law and HIPAA. See also O’Donnell v. Blue Cross Blue

Shield of Wyo. (D.Wyo. 2001), 173 F.Supp.2d 1176. Accordingly, we find that this

court does have jurisdiction to address the issues presented herein.

HIPAA

Pursuant to Louisiana law, medical records are subject to the health care

provider-patient privilege, which mandates that a health care provider not release a

patient’s records to anyone other than the patient without his consent. La.Code Evid.

art. 510. Article 510 governs testimonial privileges, exceptions, and waivers with

respect to communications between a health care provider and a patient in

noncriminal proceedings. La.R.S. 13:3734(B); Moss v. State, 05-1963 (La. 4/4/06),

916 So.2d 121.

Louisiana Code of Evidence Article 510 provides, in relevant part:

B. (1) General rule of privilege in civil proceedings. In a
non-criminal proceeding, a patient has a privilege to refuse to disclose
and to prevent another person from disclosing a confidential
communication made for the purpose of advice, diagnosis or treatment
of his health condition between or among himself or his representative,
his health care provider, or their representatives.

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(2) Exceptions. There is no privilege under this Article in a
noncriminal proceeding as to a communication:

....

(d) When the communication relates to the health condition of a
patient when the patient is a party to a proceeding for custody or
visitation of a child and the condition has a substantial bearing on the
fitness of the person claiming custody or visitation, or when the patient
is a child who is the subject of a custody or visitation proceeding.

Pursuant to Article 510, Sister Depwe’s records of her treatment of the Findleys

are excepted from Louisiana’s health care provider-patient privilege and are

discoverable under Louisiana law. Sister Depwe does not dispute this, but she claims

that pursuant to HIPAA she is obligated to protect the privacy of the Findleys’

medical records. Her motion to quash is based on 45 C.F.R. 164.524, which she

claims precludes her from producing the Findleys’ records. She also claims that

HIPAA preempts Louisiana law which would require her to produce the records.

HIPAA provides a uniform reporting system for health service facilities and

organizations and was designed, in part, to maintain control over federal dollars spent

for medical services. In addition to establishing a reporting system, HIPAA required

the Secretary of Health and Human Services to promulgate regulations to protect the

“privacy” of private health information of individuals.2 42 U.S.C. §§ 1320d-1(d),

1320d-3(a)(b), 1320d-4(b); see also U.S. ex rel. Stewart v. Louisiana Clinic, 2002

WL 31819130 (E.D.La. 2002) (not reported in F.Supp.2d). There was no federal

common law health care provider-patient privilege prior to the enactment of HIPAA,

and while HIPAA regulates the disclosure of medical information by health care

2
The regulations adopted by the Secretary of Health and Human Services are contained in
the Code of Federal Regulations; therefore, references throughout the remainder of this opinion
are to the Code of Federal Regulations only, not HIPAA, as enacted in Title 42 of the United
States Code.

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providers, it did not create a privilege. Northwestern Mem’l Hosp. v. Ashcroft, 362

F.3d 923 (7th Cir. 2004). Accordingly, we must determine whether HIPAA’s privacy

regulations preclude the disclosure of the medical information at issue here. We find

that they do not.

The basis of Sister Depwe’s objection to producing the subpoenaed records is

45 C.F.R. § 164.524. This provision governs an individual’s access to “protected

health information about the individual.” 45 C.F.R. § 164.524(a) (emphasis added).

By its clear terms, § 164.524 cannot serve as the basis for Sister Depwe’s refusal to

produce anyone’s records other than Billie’s.

HIPAA preempts any “contrary” state law, unless the state law is “more

stringent” than the HIPAA requirements. 45 C.F.R. § 160.203. A state law is

“contrary” to HIPAA if a health care provider would find it impossible to comply

with both the state and federal provisions regarding disclosure or the state law is an

obstacle to the accomplishment of the purposes of HIPAA. 45 C.F.R. 160.202.

However, there is no preemption if a “contrary” state law is “more stringent” than

HIPAA. 45 C.F.R. § 160.203(b).

Louisiana law allows an individual complete access to all of her medical

records, but 45 C.F.R. § 164.524(a) limits an individual’s access to her medical

records. Therefore, Louisiana law is contrary to HIPAA, as a health care provider

would find it impossible to comply with Louisiana law, which does not restrict the

release of an individual’s medical records to that individual, and HIPAA, which does

restrict the release of an individual’s medical records to the individual in certain

circumstances. 45 C.F.R. § 160.202. Thus, HIPAA preempts Louisiana law on this

issue, unless Louisiana law is more stringent. 45 C.F.R. § 160.203. Louisiana law

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is more stringent with regard to an individual’s rights to her medical records because

it “permits [an individual] greater rights of access or amendment” to her records than

§ 164.524 does. 45 C.F.R. 160.202. Consequently, HIPAA does not preempt

Louisiana law, and Sister Depwe’s refusal to produce the subpoenaed medical records

is not justified.

Disposition

The trial court’s denial of the motion to quash is affirmed. Costs of these writ

applications are assessed to Sister Diane Depwe.

WRIT DENIED.

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