with whom WINCHESTER, C.J., and TAYLOR, J., join, concurring
T1 A privilege that protects one's health information from being disclosed may be waived or lost by operation of law. Persons whose lawsuit places in issue their physical or mental condition relinquish pro tanto the privilege of nondisclosure. As the privilege itself, so also its waiver is law-imposed and self-executing.1 For its effectiveness neither requires nor depends on an antecedent judicial declaration.2
{2 When the privilege is believed no longer to obtain, ex parte communications with a medical provider of the opposing party will be neither judicially impeded nor compelled. A court order that allows or authorizes but does not require oral communications with the opposite party's health care providers is not impermissible, but its terms must be confined to a patient's mental or emotional condition that is relevant to the claims or defenses which are at issue in the action.
13 Allowing the judiciary to be cast into a more extensive role in the process of voluntary ex parte negotiations for access to information would indeed be damaging to its constitution-commanded posture of absolute detachment and neutrality. We are clearly duty-bound to protect judges from the brink of exposure to a grave threat to both their image as well as to the reality of their law-exacted impartiality. If voluntary negotiations for securing the no-longer-protected disclosure should fail, the party seeking the information's release is eo instante relegated by law to the process of discovery.3
{4 Ground rules for ex parte communications about and disclosures of unprivileged health information are long overdue. Appellate crafting of legal norms for this litigation-related activity must follow the pattern of other jurisprudence. Litigants and health care providers should tender to the trial court specific issues appropriate to the controversy before it. Appellate courts' norm-making will concern itself primarily with conformity of ground rules to be established to the requirements of due process that must assure the adversary parties as well as the health-care providers of optimum fundamental protection and fairness. Judges shall abstain from giving off-the-record advice to the parties or to non-party actors. In short, ex parte communications about and disclosures of unprivileged health information shall be subjected to trial-court regulation whenever problems are properly called to judicial attention.
T5 The court correctly concludes today that (1) Oklahoma jurisprudence is not inconsistent with "the procedural requirements and safeguards imposed by HIPAA"-the Health Insurance Portability and Accountability Act, 42 U.S.C. § 1820(d) et seq; (2) the order is deficient because it does not restrict the disclosure to be obtained to the patient's mental or emotional condition that is relevant to the claims or defenses which are at issue in the action; and (8) the order does not clearly advise the physicians that informal health information exchanges may not be compelled.
T6 I henee concur in granting petitioner's quest for a writ of prohibition that should cure the defects presently in the order.
. Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230, 231-232; Robinson v. Lane, 1971 OK 9, 480 P.2d 620, 621-22, see also Brandt v. Medical Defense Associates, 856 SW.2d 667, 669-670 (Mo.1993); Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292, 300 (1993) ("Courts have generally held that filing a personal injury claim waives the physician-patient privilege as to information concerning the health and medical history relevant to matters which plaintiff has placed at issue").
. Seaberg v. Lockard, supra note 1.
. 76 O.S. Supp 2005 § 19(B)(1); Seaberg v. Lockard, supra note 1; Johnson v. District Court of Oklahoma County, 1987 OK 47, 738 P.2d 151.