Opinion
CIVIL ACTION NO: 02-3355; SECTION: "J" (4)
October 14, 2003
MOTION TO COMPEL AUTHORIZATION AND DISCLOSURE OF RECORDS (DOC. # 6)
On September 3, 2003, the defendants, The Pep Boys-Manny, Moe Jack, Inc., filed a Motion to Compel Authorization and Disclosure of Records (doc. #6) seeking an order compelling the plaintiff to sign an authorization allowing the defendants to obtain records regarding the plaintiff's drug treatment at the Metropolitan Treatment Center and further compelling that facility to produce such records. In the alternative, the defendants request that this Court order the records produced for an in camera inspection, to determine the relevancy of the information contained therein. A hearing on the motion was held on September 24, 2003.
During the hearing, the defendants argued that they are entitled to know if the plaintiff was taking any prescription drugs at the time of his accident and whether such drugs could have contributed in any way to his accident. Moreover, the defendants contended that since additional surgery is being contemplated based on plaintiff's subjective complaints of pain, they are entitled to investigate whether the complaints of pain are related to his prior substance abuse problem or whether the complaints of pain are made in order to obtain narcotic medication. The defendants further argued that the records should be released because the plaintiff has already brought his credibility into question by failing to answer the discovery requests truthfully.
The plaintiff argued that the drug treatment records sought by the defendants are made confidential under federal regulations and cannot be released because the defendants have not satisfied the threshold disclosure requirements.
I. Factual Background
This suit arises out of a claim filed by Wayne Guste, Sr. after he was allegedly injured in an accident at the defendant's store on April 19, 2002. The plaintiff allegedly tripped over a hang bar leaning against a cart in the store, sustaining injury to his right knee.
Pursuant to discovery, the defendants propounded Interrogatories and Requests for Production of Documents to the plaintiff. The two critical interrogatories at issue here are Interrogatory No. 11 which states: If you consumed any drugs, medications or alcoholic beverages during the twelve (12) hours prior to the accident specify the kind, amount, and place taken and if so. to specify the kind, amount and place taken: and Interrogatory No 17 which states:Please identify and specify the name, address and telephone number of each and every healthcare provider who has seen, treated, consulted or prescribed medication for you, or any person for whom you are making a claim for personal injuries, in the ten year period immediately prior to this accident Do not limit your answers to just physicians. To both interrogatories, the plaintiff responded: None .
The defendants are unsure of whether the plaintiff answered Interrogatory No. 11 truthfully, and they pointed out that in response to Interrogatory No. 17, the plaintiff said he had received no medication from any medical facility, although they later found this to be untrue.
While conducting discovery, the defendants obtained medical records from the plaintiff's primary treating physician, Dr. Peter R. Galvan. The plaintiff had visited Dr. Galvan's office on January 9, 2002, complaining of back pain. The doctor's notes from that day indicate that the plaintiff revealed to Dr. Galvan that he was hooked on pain pills, using about 8 Lortab pills per day, that he can't sleep without the medication and he goes to other people/friends for pills when he runs out. The defendants also found out that the plaintiff had prescriptions for Vioxx, Celebrex, Mobic, Viagra and Vicoprofen. He was also given prescriptions for Catapres, Oxycotin and Librium.
See defendants' Motion to Compel Authorization and Disclosure of Records. Exh. 5.
Vioxx and Celebrex are used in the management of acute pain in adults. They are indicated for relief of the signs and symptoms of osteoarthritis and rheumatoid arthritis. See Physician's Desk Reference at 2120-22, 2718 (57th ed. 2003).
Mobic is indicated for relief of the signs and symptoms of osteoarthritis. Id. at 1050.
Vicroprofen combines the opiod analgesic agent, hydrocodone bitartrate with the non-steroidal, anti-inflammatory agent, ibuprofen and is indicated for the short-term management of acute pain. Id. at 513.
Catapres is indicated in the treatment of hypertension. Id at 1032.
Oxycotin tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the-clock analgesic is needed for an extended period of time. Id. at 2852.
Librium is used in the treatment of anxiety disorders. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 312 (28th ed. 1994).
Further, the defendants obtained medical records from the orthopedic surgeon the plaintiff first contacted about his alleged injury, Dr. Charles W. Krieger, Jr. On May 8, 2002, Dr. Krieger prescribed Lortab 7.5 #30 with one refill to the plaintiff. The plaintiff returned on May 29, 2002, and was given another refill of Lortab. When the plaintiff called on June 11, 2002, requesting additional medication, he was refused because of the two previous prescriptions.
See defendants' Motion to Compel Authorization and Disclosure of Records. Exh. 6.
Lortab is indicated for the relief of moderate to moderately severe pain. See Physician's Desk Reference at 3227 (57th ed. 2003).
On June 12, 2002, the plaintiff started seeing another orthopedic surgeon, Dr. Brian Fong. On that date, Dr. Fong prescribed Vicodin for the plaintiff, and on June 17, 2002, Dr. Fong prescribed Lortab with no refills until July 2, 2002. The plaintiff underwent knee surgery on June 27, 2002. On July 3, he was given Lortab #50 and #100 on July 8. The plaintiff continued to complain of pain, and in Dr. Fong's opinion, he would need additional surgery.
See defendants' Motion to Compel Authorization and Disclosure of Records. Exh. 8.
Vicodin is indicated for the relief of moderate to moderately severe pain. Id. at 512.
Dr. Fong stopped prescribing medication to the plaintiff after receiving a request for medical records from Metropolitan Treatment Center ("Metropolitan"). The plaintiff allegedly told Dr. Fong that the request from Metropolitan was for a pre-employment physical. However, after phoning the facility, Dr. Fong learned that it was a methadone clinic and refused to prescribe plaintiff any more medication since he was getting medication elsewhere. In April of 2003, the plaintiff signed a limited release authorizing Dr. Fong to obtain his current prescribed medications from Metropolitan. II. Legal Analysis
See Plaintiff's Memorandum in Opposition to Motion to Compel Authorization and Disclosure of Records. Exhibit A.
A plaintiff places his/her physical condition at issue by filing a claim for personal injuries. If effect, if a plaintiff sues, he/she waives the confidentiality of medical records. Sibbach v. Wilson, 61 S.Ct. 422 (1941); see also Lischka v. Tidewater Services, Inc. 1997 WL 27066 (E.D. La. 1997) (when regular medical records are at issue, a plaintiff can be compelled to sign an authorization); Bosarge v. Penrod Drilling Co., 1998 WL 92043 (E.D. La. 1988) (same). However, with regard to drug treatment records, Congress recognized a need to maintain the confidentiality of these records to encourage people to seek treatment. Mosier v. American Home Patient, Inc., 170 F. Supp.2d 1211 (N.D. Fla. 2001).
The Alcohol, Drug Abuse and Mental Health Administration Act, 42 U.S.C. § 290aa-290ff (1986) ("regulations") prohibits disclosure of records relating to alcohol and substance abuse treatment. "The express purpose of statutes and regulations prohibiting disclosure of records relating to substance abuse treatment, except by patient consent or court order after a showing of good cause, is to encourage patients to seek treatment for substance abuse without fear that by so doing, their privacy will be compromised." Id. at 1213. Both the statute and the governing regulations carry a strong presumption against disclosing records of this kind, and the privilege afforded "should not lightly be abrogated." Fannon v. Johnson, 88 F. Supp.2d 753, 758 (E.D. Mich. 2000).
The statute permitting disclosure of such confidential drug treatment records provides that the content of the records can be disclosed "with the prior written consent of the patient. 42 U.S.C. § 290dd-2(b)(1). Further, the statute provides that even without a patient's written consent, the records may be disclosed:
If authorized by an appropriate order of a court of competent jurisdiction granted after application showing good cause therefor, including the need to avert a substantial risk of death or serious bodily harm. In assessing good cause the court shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services. Upon the granting of such order, the court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate safeguards against unauthorized disclosure.42 U.S.C. § 290dd-2(b)(2)(C). In making its determination, the court should consider imposing appropriate safeguards to guard against unauthorized disclosures. Id. Further, in determining whether good cause exists, the Court may consider whether other ways of obtaining the information are available. See 42 C.F.R. § 2.64(d)(1) (2). The good cause showing is not a low burden to meet. The Court in Fannon stated that ". . . it will be the exceptional case that meets the good cause requirements of 42 U.S.C. § 290dd-2(b)(2)(C) and 42 C.F.R. § 2.64(d)." 88 F. Supp.2d at 766.
Here, the Court finds that the defendants have not shown good cause in seeking the confidential information contained in the plaintiff's drug treatment records at Metropolitan. It is no question that the defendants should be allowed to properly prepare a defense in this matter. However, the Court finds that the defendants can properly defend this matter without obtaining the plaintiff's records. The fact that the defendants may find information that would be useful in preparing a defense to suggest that the plaintiff was under the influence of drugs and/or alcohol at the time of the alleged incident, certainly does not outweigh the possible injury to the plaintiff in releasing these records.
Furthermore, the Court finds that the defendants have not made an adequate showing as to the relevance of the confidential communications contained in the plaintiff's drug treatment records. The Federal Rules of Civil Procedure allow for discovery "regarding any matter, not privileged, which is relevant to a claim or defense of any party . . ." Fed.R.Civ.P. 26(b)(1). In his complaint, the plaintiff asserts that his accident was the result of the defendants' failure to properly maintain its property, failure to correct dangerous and hazardous conditions and failure to warn of dangerous and hazardous conditions on defendants' property. In answering the complaint, the defendants assert that if the plaintiff was injured, it was due to his own negligence and failure to take care of his own safety. In the alternative, the defendants aver that if the plaintiff was injured, it was the result of the fault, negligence and omissions of third parties.
Rec. Doc. No. 1.
Id.
The defendants have failed to show how the confidential information contained in the plaintiff's drug treatment records is relevant to a claim or defense in this matter. The confidential communications made by the plaintiff to any person(s) at Metropolitan, for the purpose of seeking treatment for any drug and/or alcohol addiction, are not at issue. And, though the defendants, were made aware of plaintiff's treatment at Metropolitan, this fact in and of itself does not place the confidential communications at issue.
The Court in Mosier stated that even if a court finds good cause, "confidential communications made by a patient to a program in the course of diagnosis, treatment, or referral" may be disclosed only if:
(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;
(2) The disclosure is necessary with investigation or prosecution of an extremely serious crime, such as one which directly threatens the loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or
(3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.170 F. Supp.2d 1211 (citing 42 C.F.R. § 2.63(a)).
The first and second categories clearly do not apply to this matter. However, the defendants argued that the plaintiff, by authorizing the release of his records to Dr. Fong, has "offered testimony or other evidence pertaining to the content of the confidential communications." The plaintiff only signed a limited release of his "medications prescribed" from Metropolitan Treatment Center to Dr. Fong. And, that limited release does not equate to the plaintiff offering testimony or evidence pertaining to the content of the confidential communications.
The defendants argued that they would have questioned the plaintiff regarding the treatment he received at Metropolitan had the plaintiff been honest in responding to defendants interrogatories, and plaintiff thus would have "offered evidence or other testimony" pertaining to the confidential communications and the requirement would be satisfied. The Court understands the predicament, however, those are not the facts on which the Court must base its opinion. In light of the Congressional prohibition against ordering the release of these records unless certain findings are made, and finding that the defendants have not satisfied the disclosure requirements of the regulations, the Court has a duty to promote the purposes behind the regulations and preserve the confidentiality of these records to protect the plaintiff's privacy interests.
Accordingly,
IT IS ORDERED that the Motion to Compel Authorization and Disclosure of Records (doc. #6) is DENIED.