United States District Court, D. Arizona
SHARI A. LIND, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
CINDY K. JORGENSON, District Judge
Pending before the Court is resolution of the discovery dispute between the parties. Counsel presented argument to the Court on June 24, 2014. Pursuant to order of the Court, counsel have supplemented their arguments by providing case law support for their positions to the Court's staff. The Court took the matter under advisement and issues its ruling herein.
Supplemental Authority Submitted by Counsel
The Court directed counsel to submit any case law they wished to present to the Court by June 26, 2014. Counsel have each submitted case law in support of their positions. Counsel for Defendant United States of America ("the government"), however, also included argument distinguishing authority submitted by counsel for Plaintiff Shari Lind ("Lind"). As the Court did not direct counsel to respond to opposing counsel's submission and is not providing Lind's attorney a similar opportunity to respond to the government's case law, the Court does not consider defense counsel's argument distinguishing the case cited by Lind in issuing its decision herein.
Discovery of IME Reports
Lind requests the independent medical examination ("IME") reports, with some limitations, authored by Dr. Eskay-Auerbach at the request of the government be disclosed to Lind. Lind asserts the disclosure is appropriate to allow Lind to look into the potential bias of the expert. The government asserts disclosure is precluded by HIPAA, privacy, and privilege.
Health Insurance Portability and Accountability Act of 1996
The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") restricts health care entities from disclosure of "protected health information" ("PHI"). Regulations authorized by the HIPAA, 42 USC § 1320d et seq., prohibit ex parte communications with health care providers regarding patients' medical condition without their consent or a "qualified protective order." 45 CFR § 164.512. HIPAA's privacy provisions allow for disclosure of medical information in the course of administrative or judicial proceedings; however, the Act places certain requirements on both the medical professional providing the information and the party seeking it. See 45 C.F.R. § 164.512(e) (2004). However, this only applies to "covered entities." A covered entity is a health plan, a health care clearinghouse, and "a health care provider who transmits any health information in electronic form in connection with a transaction covered by [the] subchapter. 45 CFR § 160.103.
The government argues that the basis of the IMEs was the providing of information to Dr. Eskay-Auerbach - it appears that, at least as to some cases, the information provided to the doctor was subject to protective orders or confidentiality clauses. In other words, the IMEs in possession of the government contain information pursuant to prior HIPAA protective orders. There is no basis to conclude that defense counsel is no longer bound by those HIPAA protective orders. The Court, therefore, will discuss HIPAA's application.
Another district court has stated:
HIPAA does not create substantive rights that act as a bar on discovery. It merely establishes procedural mechanisms which have been complied with in the instant case. HIPAA regulations is purely procedural in nature and does not create a federal physician-patient or hospital-patient privilege. Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 923, 925-926 (7th Cir.2004). The private information could be redacted. HIPAA does not preclude production where an adequate protective order is in place. 45 C.F.R. § 164.512(e).
Allen v. Woodford, CV-F-05-1104 OWW LJO, 2007 WL 309485 *11 (E.D.Cal. 2007). The protective order must prohibit "using or disclosing the protected health information for any purpose other than the litigation, " and "[r]equire [ ] the return to the [physician] or destruction of the protected health information... at the end of the litigation or proceeding." 45 C.F.R. § 164.512(1)(e)(v).
Therefore, if the Court determines disclosure of the IMEs is appropriate, HIPAA provides a mechanism to protect the ...