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Click here for the full text of this decision FACTS:Kelly and James Regian sued Dr. Lester Collins and ETMC Neurological Institute alleging that Collins and ETMC failed to timely diagnose Kelly’s nasopharyngeal carcinoma. Prior to filing suit, Kelly gave notice of her claim as required by Texas Civil Practice & Remedies Code �74.051. The notice was accompanied by an authorization for release of health information in the form prescribed by Texas Civil Practice & Remedies Code �74.052. In the authorization, Kelly listed a number of physicians and health-care providers who had information relevant to the Regians’ claim against Collins and ETMC. As permitted by the authorization, she also listed several physicians and health-care providers to which the authorization did not apply, because she contended the health-care information in their possession was not relevant to the claimed damages or to her physical, mental, or emotional condition arising out of her claim. After the suit was filed, the Regians filed a motion for protective order seeking to 1. prevent Collins and ETMC from having ex parte communications with any of Kelly’s nonparty treating physicians; 2. require Collins and ETMC to disclose any contacts previously made with Kelly’s nonparty treating physicians; and 3. obtain any notes or memoranda describing the content of those contacts. The Regians alleged that these protections were necessary to safeguard information in the possession of her nonparty treating physicians that was not relevant to the suit and therefore protected by the physician-patient privilege. After a hearing, the trial court granted the motion in part and signed an order prohibiting Collins and ETMC from having ex parte communications with any of her nonparty treating physicians. Collins filed a petition for a writ of mandamus seeking to overturn the order. HOLDING:The court denied the petition for a writ of mandamus. As a general rule, confidential communications between a physician and patient are privileged and not subject to disclosure. Exceptions pertinent to this case are: 1. when the proceedings are brought by the patient against a physician and the disclosure is relevant to the claims or defense of a physician; 2. when the patient submits a written consent to the release of the privileged information; and 3. when the communication or record is relevant to an issue of the physical, mental or emotional condition of a patient where a party relies upon the condition as a part of the party’s claim or defense. The physician-patient privilege remains in effect for communications not relevant to the underlying suit. Collins contended that Texas Civil Practice & Remedies Code �74.052 constituted a complete waiver of the physician-patient privilege for relevant health information and “includes the verbal as well as the written.” The Regians did not disagree. But Collins further argued that verbal health information may be obtained through ex parte communications with nonparty treating physicians and that the trial court lacked discretion to prohibit these communications. The Regians contended that no Texas law or rule expressly prohibited ex parte communications or stated that such communications are permissible. They urged that it was within the sound discretion of the trial court to enter a protective order prohibiting ex parte communications with nonparty treating physicians. The court’s resolution of the issue turned on the meaning of �74.052. The plain language of the statute neither explicitly authorized nor explicitly prohibited ex parte communications, the court stated. The court also looked at various other methods of statutory construction in analyzing the statute. After completing its analysis, the court concluded that �74.052 did not change existing law and therefore did not prohibit a defendant from communicating ex parte with a claimant’s treating physicians and health- care providers. However, that did not end the inquiry. The court also sought to determine whether ex parte communications are permissible only under certain circumstances or in all cases involving the prosecution of a health-care liability claim. Collins, the court stated, argued that placing additional restrictions on the statutory authorization was a denial of proper discovery and an improper application of the law. If the statute expressly required that ex parte communications be allowed in all circumstances, the court stated that it would agree with Collins. But the court found that neither the statute nor the legislative history addressed ex parte communications. Although the court concluded that �74.052 does not prohibit ex parte communications generally, it does not authorize ex parte communications under all circumstances when a patient is prosecuting a health-care claim. Thus, the court stated that �74.052 does not prohibit the issuance of a protective order to protect privileged information that is irrelevant to a health-care liability claim. As a result, the court held that the trial court did not abuse its discretion in prohibiting postsuit ex parte communications. OPINION:Hoyle, J.; Worthen, C.J., and Griffith and Hoyle, J.J.

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