Opinion
Cause No. IP01-1221-C-H/K
January 9, 2003
Gary W Bippus, Ricos Bippus Ralph, Indianapolis, IN.
Robert E Harrington, Harrington Thompson Acker and Harrington, Chicago, IL.
Bruce A Hugon, Stuart Branigin, Indianapolis, IN.
ENTRY ON DEFENDANT'S MOTION TO COMPEL PLAINTIFF TO EXECUTE MEDICAL AUTHORIZATION
On or about September 2, 1999, Plaintiff Sonya C. Everhart sustained a work-related injury during her employment with Defendant National Passenger Railroad Corporation (d/b/a Amtrak). As a result, Everhart filed suit under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et. seq., claiming that Defendant's negligence caused her injuries. [Compl. ¶¶ 3-4, 7]. In the discovery process, Defendant provided Everhart with a medical authorization which stated in pertinent part:
I [Sonya C. Everhart] authorize my health care providers to provide to [Defendant], a copy of all records pertaining to the shoulder and neck injuries I sustained on or about September 2, 1999. These records include, but are not limited to, reports, consultations, x-rays, charts and office notes. I also authorize my health care providers to discuss my injuries with the individuals who are receiving these records. My authorization extends to my medical condition causally or historically related to my injuries.
[Def.'s Ex. 1] (emphasis in original). Essentially, Defendant wants to discover Everhart's medical records and conduct informal, private interviews with Everhart's physicians.
Everhart has refused to sign this release, claiming that Defendant does not have a right to conduct ex parte conferences with her health care providers. As a result, Defendant has filed a motion to compel Everhart to execute its medical authorization.
Everhart failed to file an opposition to Defendant's motion to compel. Therefore, the Court accepts as true Defendant's representations as to the nature of Everhart's objections to the authorizations. [See Defendant's Rule 37.1 statement, Docket # 29].
Magistrate Judge Hussmann addressed the issue here in Shots v. CSX Transp., Inc., 887 F. Supp. 206 (S.D.Ind. 1995). In Shots, the defendant wanted plaintiff to sign medical authorizations so that it could "conduct discovery by way of an ex parte communication with the plaintiff's treating physician. Id. at 207. Judge Hussmann granted defendant's motion to compel plaintiff to execute medical authorizations, and the Court finds instructive the following passage from that case:
In this particular case, the plaintiff has clearly put his medical condition at issue in the lawsuit. He has not indicated in his brief that he has any medical condition which is not related to his accident, or any condition that is "potentially embarrassing or ruinous" which would counsel for more rigorous protection of the privilege. We believe that the Federal Rules of Civil Procedure leave to the district court the discretion whether to allow ex parte conferences. Where the plaintiff does not suggest that any other medical condition exists which merits protection from disclosure, the policy considerations which protect the physician-patient relationship can safely be subverted to those policy considerations which expedite the discovery process. We encourage counsel for the parties to arrange informal conferences with the physicians in lieu of depositions when possible to reduce expenses in this case, and we likewise encourage counsel to offer to opposing counsel the opportunity to be present when informal communications take place. But we stop short of mandating that plaintiff's counsel be present on each occasion in this case. This opinion does not foreclose the possibility that an order prohibiting ex parte conversations could be issued in other cases in which a plaintiff objects to release of medical information because there is medical information in the possession of a particular physician which is both causally and historically unrelated to the condition at issue in the lawsuit and is potentially embarrassing or ruinous.
Id. at 207-08. Similarly, in this case, Everhart has placed her medical condition at issue by seeking damages for "disability" and "pain and suffering." [Compl. ¶ 8].
Everhart's physicians may have information about her medical condition that is sensitive, irrelevant, and even embarrassing. However, the Court must balance the risks of disclosure of this information with that of the Defendant's right to mount its defenses for trial and to have equal access to pertinent witnesses. In attempting to strike this balance, the Court notes that Everhart failed to file an opposition brief. As a result, any claims of privacy or other sound arguments Plaintiff might have made against disclosure are waived. This necessarily tips the balance in Defendant's favor. Therefore, Defendant is permitted to conduct ex parte interviews with Everhart's physicians as if they are any other fact witness.
Accordingly, Defendant's motion to compel Plaintiff to execute medical authorization is GRANTED. Within 15 days of this entry, Everhart is ORDERED to provide Defendant with the signed authorization proffered as Defendant's Exhibit 1.
So ordered.