concurring.
I 1 Today this Court examines the effect of HIPAA on the pre-discovery practice of in*1049formal ex parte communication between a plaintiff's medical provider and defense counsel in a medical malpractice action. I concur in the Court's determination that HIPAA does not prohibit court authorization of that practice provided that the court order limits the seope of such disclosure pursuant to seetion 19(B) and section 2503(D)(8), and further that it complies with the privacy limitations imposed by HIPAA. I write separately to further explain the historical and jurisprudential context of today's decision.
SECTION 19(B) AND PRE-HIPAA DECISIONS
12 Before the HIPAA privacy regulations were enacted in 2003, this Court unquestionably permitted the practice of ex parte communication pursuant to section 19(B). Two decisions described the method and cireum-scribed the seope of that practice: Johnson v. District Court, 1987 OK 47, 738 P.2d 151, and Seaberg v. Lockard, 1990 OK 40, 800 P.2d 230.
T3 Johnson and Seaberg describe an informal method of pre-discovery. Those decisions view section 19(B) as a self-executing waiver of privilege limited to the issues and injury involved in the malpractice action. If this Court were to validate the challenged order, it would dramatically expand the scope of section 19(B)'s self-executing waiver of privilege to all protected health information. Such an unbounded order would result in unlimited ex parte communication by court order contrary to the limitations on the scope of the section 19(B) waiver of privilege articulated in Johnson and Seaberg. The fact that the waiver is self-executing does not justify a determination that its seope is unlimited.
1 4 It is important to note that the medical provider sought the challenged order only after Plaintiff refused to execute an unlimited authorization that did not comply with HIPAA. The order appears designed to assure physicians and other health care providers that they will not violate HIPAA no matter the method or degree of communication or the scope of the protected health information they disclose to counsel. For what other reason, while in pre-discovery, would a medical provider seek a court order to authorize the release of information that is available informally under section 19(B) through ex parte communication? The challenged order would not have been presented to the trial court but for the enactment of the HIPAA regulations limiting the disclosure of protected health information.
EFFECT OF HIPAA ON EX PARTE COMMUNICATIONS
15 HIPAA was enacted to, among other things, "ensure the integrity and confidentiality of [patient] information" 42 U.S.C. § 1320d-2(d)(2)(A). The Act authorizes the Department of Health and Human Services to enact regulations to further that goal. In 20083, the privacy rules became effective, including the litigation provision found at seetion 164.512(e). At that time, Oklahoma was one of only fifteen states that permitted the practice of informal ex parte communication between a patient's medical provider and opposing counsel in a malpractice action. Daniel M. Roche, Don't Ask, Don't Tell: HI-PAA's Effect on Informal Discovery in Products Liability and Personal Injury Cases, 2006 BY.U.L.Rev. 1075, 1088-84. Twenty-four states prohibited the practice. Id. Litigation began immediately in state and federal courts concerning the effect of HIPAA in that minority of states that permitted the practice.
16 In Oklahoma, the Oklahoma State Medical Association and the Oklahoma Hospital Association made a joint request to the Secretary of the Department of Health and Human Services for an exception to any preemptive effect of HIPAA on section 19(B). The Secretary delegated the decision on such requests to the Office for Civil Rights. On June 24, 2008, the Director of that office issued his response to the request.
17 The response began by quoting the exemption request which noted that section 19(B) permits defense counsel in a medical malpractice action "to gather medical records and/or conference with willing health care providers without the necessity of a patient authorization, subpoena, or court order." After analyzing section 19(B) and HIPAA, the *1050response concluded that there was no preemption issue because "covered entities can comply with both [section] 19(B) and 45 CFR. § 164.512(e)(1)Gi)-(vi). It is neither impossible for a health care provider to comply with both statutes, nor is complying with the Oklahoma statute an obstacle to the accomplishment or execution of the purposes and objectives of HIPAA." Thus, no exemption was required because preemption was not an issue.
T8 Apparently, this was not the answer that the medical and hospital associations wanted to hear. Having been told precisely the requirements for limiting ex parte communication in order to comply with state and federal law, medical providers and defense counsel began to request court "authorizations" in an apparent attempt to cireumvent those requirements. These attempts have met with varying degrees of success as demonstrated by the orders included in the Appendix to Plaintiffs Application to Assume Original Jurisdiction and Petition for Writ of Prohibition. Some Oklahoma judges have imposed limits on the disclosure permitted pursuant to ex parte communication authorizations presented for their signature and some have not.
T9 Today this Court rejects the argument that an authorization signed by a judge need not comply with the HIPAA privacy requirements enumerated at section 164.512(6)(1)Gi-vi). The rejection of that argument is entirely consistent with the decisions of the state and federal courts that have examined the effect of HIPAA on provisions of state law which permit ex parte communication. Each of these decisions has either held that HI-PAA prohibits such communication without patient authorization1 or has limited the seope of disclosure by applying the HIPAA privacy requirements in addition to the requirements of state law.2 "[In the time following HIPAA's passage, no court in the United States has held that ex parte interviews with a plaintiff's treating physician are permitted absent some sort of formal restriction." Roche, supra, at 1091. Thus, today's recognition of the limitations imposed by state and federal law is well within the mainstream of post-HIPAA decisions concerning ex parte communication.
PREVENTION OF UNFAIR TACTICAL ADVANTAGE
110 Proponents of the challenged order sought to expand completely the scope of permissible disclosure of protected health information. The challenged order would have allowed defense counsel in a malpractice action to obtain all medical and psychological health information of a patient, even information that had nothing to do with the malpractice action. The fact that the irrelevant information may not be admitted at trial would not remedy the unfair tactical advantage that access to the information would provide to defense counsel.
11 If this Court were to validate a broad general order like the one challenged in this action, it would effect a radical change in the manner in which protected health informa*1051tion would be obtained. If a malpractice plaintiff would not sign an authorization that set no limits on disclosure under state or federal law, such an authorization would simply be presented for the trial judge's signature. The same general order presented in this matter, having been validated by this Court, would become the standard order presented for the trial judge's signature in all future proceedings. The disclosure of protected health information would then take place without the plaintiff's knowledge of the event or the knowledge of which protected health information was disclosed. Irrelevant and potentially embarrassing information would become available to defense counsel solely for tactical advantage. Such a result would be contrary to HIPAA's strong public policy in favor of protecting health information from unnecessary disclosure and it would be contrary to state and federal law.
CONCLUSION
T12 This Court has determined that ex parte communication remains viable following the enactment of the HIPAA privacy regulations provided that the court order which authorizes such communication complies with the requirements of state law and with HIPAA. By doing so, this Court has upheld its jurisprudence concerning ex parte communication while giving effect to the limitations that HIPAA imposes on the disclosure of protected health information.
. Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1029 (S.D.Cal.2004)("Only formal discovery requests appear to satisfy the requirements of § 164.512(e)."); Law v. Zuckerman, 307 F.Supp.2d 705, 711 (D.Md.2004) (''Informal discovery of protected health information is now prohibited unless the patient consents."); EEOC v. Boston Market Corp., 2004 WL 3327264 at "5 (E.D.N.Y. Dec.16, 2004)("ex parte communications regarding the disclosure of health information, while not expressly prohibited by HIPAA, create ... too great a risk of running afoul of that statute's strong federal policy in favor of protecting the privacy of patient medical records").
. Hulse v. Suburban Mobile Home Supply Co., 2006 WL 2927519 at *2 (D.Kan. Oct.12, 2006)(proposed order granting ex parte interviews with treating physicians "clearly state(s) what medical information is covered by the Orders thus allowing any medical providers to assure themselves that they are in compliance with the HIPAA requirements"); In re Vioxx Prods. Liab. Lit., 2005 WL 2036797 at "4 (E.D.La. July 22, 2005)(court recognized that it must consider HIPAA in determining whether to allow ex parte communications with medical providers); Bayne v. Provost, 359 F.Supp.2d 234 (N.D.N.Y.2005)(qualified protective order entered to make request for ex parte communication comply with HIPAA); Smith v. Am. Home Prods. Corp., 372 N.J.Super. 105, 855 A.2d 608, 626 (2003)(broad use of informal discovery procedures "must somehow be readjusted to ensure compliance with the federal objectives under HI-PAA").