Plaintiff’s Opposition To Defendant’s Motion To Compel Medical Releases

When you file a lawsuit alleging injuries, you put your medical condition at issue. So at least some portion of your client’s medical records fair game in discovery for the defendant.

But that is a far cry from forcing your client to sign a HIPAA authorization to collect unchecked the victims’ medical records.  The subpoena process allows for checks and balances and the ability to seek a protective order for records that should not be produced.

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

DORIS JOHNSON,
– Plaintiff,

v.

KENNETH G. GOINS,
– Defendant.

Case No. CAL06-62094

Plaintiff’s Opposition to Defendant’s Motion to Compel Medical Releases

Plaintiff, Doris N. Johnson, by and through her attorneys, Ronald V. Miller, Jr. and Miller & Zois, LLC, files Plaintiff’s Opposition to Defendant’s Motion to Compel Medical Releases. For the reasons stated herein, Defendant’s motion should be denied.

INTRODUCTION

This case arises out of personal injuries suffered in an auto accident in Baltimore City on September 10, 2020. Plaintiff has sued Defendant, alleging that he negligently caused her to suffer personal injuries. Plaintiff alleges injuries to her neck, back, and right knee. Plaintiff has provided Defendant with all information known to her regarding her various health care providers during the ordinary course of discovery.

Defendant’s lawyer is now attempting to persuade this Court to enter an order that will invade Ms. Johnson’s privacy and circumvent the protections afforded her confidential health records under Maryland law. Instead of using the established procedures for subpoenaing protected health records, Defendant asks this Court to relieve him of his obligation to follow those procedures and to compel Plaintiff to allow Defendant direct access to her records.

There are several reasons why Defendant’s Motion should be denied.

First, the releases Defendant proposes are incredibly overbroad and seek material irrelevant to this action. Plaintiff is, however willing to execute a release narrowly tailored to produce only records that are material and relevant to this action.

Second, Defendant’s counsel is improperly attempting to compel Plaintiff to engage in a method of discovery that is not permitted under the Maryland Rules.

Third, Defendant can obtain the requested information through the established means of discovery.

Finally, Plaintiff is under no obligation to aid Defendant is attempting to sidestep the requirements of federal and Maryland law governing to the release of protected healthcare information and HIPAA. For each of these reasons, Defendant’s Motion should be denied.

ARGUMENT

1. The authorizations Defendant requests are overbroad, seek irrelevant material, and violate Plaintiff’s right to privacy. The most curious feature of Defendant’s Motion is that his lawyers fail to attach as an exhibit the HIPAA medical release he is asking this Court to order Plaintiff to sign. Exhibit 1. The only possible reason for this is because the proposed release is intrusive, overbroad, and requests irrelevant material unrelated to Plaintiff’s claims in this case.The release itself states that the records sought “may include information pertaining to the treatment of drug and alcohol abuse, mental illness, acquired immunodeficiency syndrome (AIDS), or human immunodeficiency (HIV); sexually transmitted disease, tuberculosis or genetics.” Exhibit 1. None of these listed conditions have any relevance to this case. Plaintiff’s claim is for bodily injuries to her neck, back and right knee.Plaintiff concedes that present or prior medical treatment to her neck, back, or right knee is relevant and material to this case. Any release should be narrowly tailored to apply to solely the body parts at issue in this case, and should specifically exclude any material related to drug or alcohol abuse, mental illness, AIDS, HIV, sexually transmitted disease, tuberculosis, or genetics.

   Although the rules of court provide a mechanism for Defendant to force compliance with the subpoenas he has issued, in the spirit of cooperation and efficiency, Plaintiff is willing to execute a release as described above, an example of which is attached as Exhibit 2. Accordingly, Plaintiff respectfully requests that this Court deny Defendant’s Motion in its entirety, or that the Court enter an order encompassing the restrictions contained within Plaintiff’s proposed release.

2. Defendant is requesting a method of discovery not permitted under the Maryland Rules. Maryland Rule 2-401 lists the methods of discovery permitted. The rule states: “Parties may obtain discovery by one or more of the following methods: (1) depositions upon oral examination or written questions, (2) written interrogatories, (3) production or inspection of documents or other tangible things or permission to enter upon land or other property, (4) mental or physical examinations, and (5) requests for admission of facts and genuineness of documents.” Nowhere does the rule indicate that it is permissible to force a litigant to execute an authorization allowing access to confidential health records protected by law.Moreover, a request for an order requiring a party to execute a medical release is not a proper subject of a motion to compel. Md. Rule 2-432 details the types of discovery devices which may properly be the subject of a motion to compel. By its terms, the rule only permits the filing of a motion to compel relating to depositions, answers to interrogatories, and responses to requests for production. Md. Rule 2-432. Because Defendant is requesting a method of discovery not permitted by the Maryland Rules, and which may not properly be the subject of a motion to compel, this Court should summarily deny Defendant’s Motion.
3. Defendant’s request violates Maryland’s health records confidentiality law. Defendant is asking this Baltimore City Circuit Court to order Plaintiff to execute health records releases, ostensibly because he has been unable to obtain certain records regarding Plaintiff. However, Maryland law already provides Defendant’s lawyers with the means to obtain the records he is seeking. Defendant’s attorneys are attempting to avoid compliance with Md. Health General Code Ann. §4-306(b)(6) and 4-307(k)(v). The statutes do not allow for a party to be compelled to execute an authorization. Those sections provide a means for mandatory disclosure of Plaintiff’s health care records. Defendant has properly subpoenaed the records, so his remedy for a health care provider’s failure to comply with the Court’s compulsory process is the Court’s existing procedures regarding the enforcement of subpoenas.
4. Defendant is seeking the wrong remedy- he should be moving to compel compliance with properly issued subpoenas. Maryland Rule 2-510 provides the proper framework for Defendant to force production of the records he seeks. In the event a health care provider has been properly served with a subpoena, Defendant should move for an order compelling production. Maryland Rule 2-510(f). Because no motion for protective order or other objection has been filed, Defendant should seek an order of the Court directing the recalcitrant providers to produce the records. Maryland. Rule 2-510(f). If this is insufficient to secure production, the entities refusing production are subject to body attachment or a fine for non-compliance. Maryland Rule 2-510(i).All that is happening here is that Defendant is trying to find a way to avoid using the enforcement procedures supplied by the Maryland Rules. Plaintiff is under no obligation to assist Defendant in making his case by executing authorizations for the release of her records. This Court should make Defendant and his counsel follow the Maryland Rules in the same manner as any other litigant.

CONCLUSION

Defendant’s Motion should be denied. The requested releases are impermissibly overbroad and intrusive. This Court should enter an order encompassing the restrictions included in Plaintiff’s proposed release. Otherwise, the Motion should be denied in its entirety because Defendant is requesting a method of discovery not permitted by the Maryland Rules and because the means of enforcing Defendant’s subpoenas already exists.

Respectfully submitted,
Miller & Zois, LLC

Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
(410) 760-8922 (facsimile)
Attorney for Plaintiff

• Sample subpoena for medical records
• Here is how you request medical records
• Review a sample HIPAA authorization
• Maryland Tort Lawyer Information Center (loads of help for putting personal injury cases together that is useful for both experienced and inexperienced counsel)
• More Motions (pleadings we need to file in the real world)