But not all medical records are relevant, and some are very personal, so parties often disagree on the permissible scope of production. The tension between the consumer’s right to privacy and the litigant’s access to information often reveals that attorneys can’t always get what they want.
Recent California court opinions and federal legislation have demonstrated a heightened commitment to protecting the consumer’s right to privacy. While no authority holds that privacy rights absolutely outweigh access to discovery, the resounding message is clear — when the privacy card is played, courts listen closely.
Privacy considerations should always play a significant role in the construction and defense of any personal-injury suit. However, some lawyers blur the fine line between relevance and intrusion in an attempt to use privacy as a weapon in litigation. When this occurs, lawyers are challenged to litigate effectively in the face of either an overreaching discovery request or an illegitimate assertion of privacy rights to impede reasonably drafted discovery.
In two recently published opinions, California Courts of Appeal have supported a cause of action for intrusion where a consumer’s privacy rights were violated. The court in Jeffrey H. v. Imai, Tadlock & Keeney, 85 Cal. App. 4th 345 (2000), found that a plaintiff could state a claim for violation of his right to privacy against a law firm that represented a defendant in an underlying personal-injury auto case when it disclosed medical records that revealed the plaintiff’s HIV status to the arbitrator.
During discovery, the lawyers received medical records from Kaiser Foundation Hospital, several of which were marked "CONFIDENTIAL: Do Not Copy Without Specific Authorized Consent." Those records disclosed positive results of the plaintiff’s HIV tests. When told of the improper disclosure, the lawyers agreed to return any records relating to HIV tests.
Despite the parties’ agreement, two documents included in the defendant’s arbitration exhibits disclosed the HIV test results, and the plaintiff later sued both Kaiser and the defense attorneys, alleging invasion of privacy under the California Constitution, a statutory cause of action under Health and Safety Code Section 120980 and a claim for negligent and intentional infliction of emotional distress.
The court found that the plaintiff could state only a claim for invasion of privacy. A plaintiff alleging invasion of privacy must establish a legally protected privacy interest; a reasonable expectation of privacy under the circumstances; and conduct by the defendant constituting a serious invasion of privacy. Hill v. National Collegiate Athletic Ass'n, 7 Cal. 4th 1 (1994).
The court began its analysis by assuming that the lawyers knew that the records had been improperly copied. The court also rejected the most common defense to these invasion-of-privacy claims: that the patient put his physical condition at issue by bringing an action for personal injuries and, therefore, did not have a reasonable expectation of privacy. The court reasoned that the bare allegation of an auto collision does not provide a reasonable basis for inferring a connection between the injuries suffered in the collision and plaintiff’s HIV diagnosis.
Finally, the court found that disclosing the confidential documents constituted a "serious invasion of privacy." The court emphasized that the unauthorized disclosure of HIV-positive test results undermines the "public interest" in encouraging patients to submit to HIV testing and to make needed disclosures of HIV-positive status during medical treatment. Urbaniak v. Newton, 226 Cal. App. 3d 1128 (1991).
In light of this policy, the irrelevance of the medical finding to the litigation, and the lawyers’ knowledge that the information was legally protected, the court held that using the documents during arbitration intruded upon the patient’s privacy rights.
Of particular concern to defense counsel is the threat posed by the Jeffrey H. case that an attorney may be held personally liable for invasion of privacy for disclosing documents that were not formally objected to during the course of discovery. For example, the patient in Jeffrey H. did not object to defendant’s records subpoena to Kaiser prior to the production, nor did he move to exclude the evidence post-production.
Of course, in Jeffrey H., the plaintiff relied on the lawyers’ written agreement to return the documents. But cases such as Jeffrey H. may deter attorneys eager to represent their client, from using documents to which opposing counsel has not properly objected.
The trend toward protecting privacy rights also shows up in Azucena Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365 (2001), where the court held that the presence of a pharmaceutical sales representative in an examination room could be deemed to be both a physical and sensory intrusion into the patient’s privacy. While this case did not involve the typical tort scenario — where records are sought after an alleged injury — it again illustrates the type of argument that is now being used to protect privacy.
The emphasis on consumer privacy is echoed in federal legislation as well. Indeed, before leaving office, former President Bill Clinton signed a federal regulation intended to heighten a consumer’s right to privacy in his or her personal health information. 65 Fed. Reg. 82462; 45 C.F.R. §§ 164.101 et seq.
In the wake of this growing trend, the increasing challenge for practitioners has become how to reconcile the consumer’s right to privacy with the litigant’s access to information under liberal discovery rules. Indeed, because privacy is held in the highest regard, counsel for both sides must consider the scope of a case at its very early stages.
Plaintiff’s counsel must carefully consider if certain causes of action or requests for damages would create a rational basis for production of medical records that the plaintiff would prefer remain private. For example, a plaintiff concerned about maintaining the secrecy of his or her HIV status may consider limiting his or her personal-injury damages. If plaintiff alleges special damages requiring an analysis of his or her life expectancy or quality of life, he or she may also create a compelling interest entitling defendant to the medical records relating to her HIV diagnosis.
Likewise, defense counsel must understand the reasonable scope of discovery and be prepared to cautiously justify discovery requests without revealing privileged work product. California Code of Civil Procedure Section 2017 requires that a party prove only that a discovery request is reasonably calculated to lead to the discovery of admissible evidence, not that the request itself is relevant.
At first blush, many of the medical records sought by defense counsel that appear unrelated to the plaintiff’s litigation, in fact, artfully lead to the discovery of admissible evidence. For example, some plaintiffs who alleged heart-valve damage in the recent diet-drug litigation challenged defendants’ requests for dental and other records. However, defendants successfully demonstrated that patients are required to reveal heart problems to their dentists before undergoing any dental procedures. The dental records therefore could alert the defendants’ counsel to any reports of cardiac compromise that the plaintiffs may have unknowingly forgotten to reveal during the course of discovery.
Recent legislation and cases such as Jeffrey H. and Sanchez-Scott remind attorneys that courts will look closely when litigants raise the privacy flags. Defense counsel should not compromise a plaintiff’s privacy rights by serving blanket discovery requests. So, too, plaintiff’s counsel must not use privacy as a tactical shield to prevent the production of undesirable information.
To reconcile the policies supporting both privacy rights and the liberal scope of discovery, litigants must consider the following:
- How the proposed records may relate to the injury.
- Whether a plaintiff is willing to limit or define injury to protect information that would otherwise be discoverable.
- How to justify the need for medical records without revealing work product.
- How to preserve confidential information through a protective order without preventing use of the information during litigation.
Despite heightened privacy considerations, courts continue to carefully balance both interests to reach a just result. Although weighing privacy interests against discovery access inevitably leaves one party empty handed, careful and early case analysis, coupled with reasonable accommodations, may ensure that both parties, at the very least, get what they need.