Alaska Employment Law

Sedwick: HIPAA isn’t part of Rule 26 balancing 

Judge John Sedwick has ordered a plaintiff to disclose ten years of broad medical and psychiatric information in a garden-variety PI case.

Eli Garnish injured his hand and arm in an industrial accident aboard a ship.  He sued, alleging negligence and unseaworthiness, and sought 

recovery for physical injuries, present and future medical expenses, and “lost earnings and lost earning capacity, pain and suffering, anguish, disfigurement, psychological stress, disability and loss of enjoyment of life.”

The ship’s owner then asked Garnish to release medical records related not only to the hand and arm, but also to ”past treatment for drug abuse, alcoholism, HIV/AIDS, and mental illness.” Garnish denied the latter kind of records existed, but also objected to the request for such.  

Relevance:  Sedwick first found the challenged portion of the discovery request relevant:

 To the extent that Garnish seeks recovery for permanent disability, future wage loss, lost earning capacity, anxiety, mental anguish, psychological stress and future pain and suffering, evidence of treatment for substance abuse, HIV/AIDS, and mental illness is relevant. Records of past treatment for alcoholism or drug abuse, HIV/AIDS, and mental illness could have a direct bearing on the resolution of those claims and are therefore within the realm of permissible discovery.

Privilege:  Sedwick next dismissed Garnish’s privilege claim:

While the Supreme Court has not addressed the issue of precisely how the psychotherapist-patient privilege can be waived, “[n]umerous courts since Jaffee [v. Redmond, 518 U.S. 1 (1996)] have concluded that, similar to attorney-client privilege that can be waived when the client places the attorney’s representation at issue, a plaintiff waives the psychotherapistpatient privilege by placing his or her medical condition at issue.”  [] Garnish has put his mental health at issue, and thereby waived the psychotherapist-patient privilege to the extent that it applied.

(Footnote omitted.) 

HIPAA:  Finally, Sedwick held that HIPAA doesn’t authorize the withholding of sensitive medical information whose release has been authorized by the patient, or has been authorized by a court and is subject to a “qualified protective order.” 

A protective order will serve the stated ends of HIPAA if it “[p]rohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested” [] and if it “[r]equires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.” []

Garnish argues that “the Court is required to balance the plaintiff’s privacy rights against the defendant’s discovery requests.” [] While clearly a basic function of HIPAA is to protect the confidentiality of individuals’ health records, as the regulations suggest, it was not intended to circumvent Federal Rule 26 by shielding litigants from having to disclose relevant, discoverable information. The court declines to graft a balancing requirement onto the discovery standards established by the Federal Rules of Civil Procedure. Despite contesting the records’ existence, Garnish has requested a protective order. Such an order would adequately serve both his interest in maintaining the privacy of any such records and comport with HIPAA.

(Footnotes omitted)

Garnish v. M/V Eyak LLC, 2008 WL 2278238 (D.Alaska May 29, 2008)

Plaintiff is represented by James Jacobsen of Beard, Stacey in Seattle.  The shipowners are represented by Michelle Buhler of Danielson Harrigan, and Svetlana Spivak of Legros Buchanan, both of Seattle.