United States District Court, D. Arizona
Lawrence N. Cherry, et al., Plaintiffs,
United States of America, Defendant.
G. Rosenblatt United States District Judge.
before the Court is the United States' Motion for
Protective Order Precluding Disclosure of the Treatment
Records Mailed to the Court by St. Luke's Behavior Health
Center (Doc. 107). Having considered the parties'
memoranda, the Court finds that the motion should be granted
pursuant to Fed.R.Civ.P. 26(c)(1)(A).
a medical malpractice action filed against the United States
pursuant to the Federal Tort Claims stemming from treatment
plaintiff Lawrence Cherry received through the Department of
Veterans Affairs. Non-party Steven Carbonniere is a physician
assistant employed by the VA who was involved in the
plaintiff's treatment between January 13, 2010 and
February 11, 2011. During his deposition on August 28, 2015,
Mr. Carbonniere testified that he had undergone a five-day
inpatient detoxification program at St. Luke's Behavior
Health Center (“St. Luke's”) in September
2011 for opioid dependence stemming from his chronic back
pain. He further testified that he had been abusing narcotics
for maybe six or eight months prior to September 2011, but
that it didn't become a complusive problem until the
summer of 2011, that he had written narcotic prescriptions
for himself using fictitious names somewhere in the area of
January or March 2011 through the late summer of 2011, and
that he was taking oxycodone on a daily basis for probably
four or five months prior to entering the St. Luke's
program. In a declaration, Mr. Carbonniere stated while at
St. Luke's he underwent a medically assisted
detoxification using methadone and participated in counseling
involving both individual and group sessions.
Mr. Carbonniere's deposition, the plaintiffs' counsel
asked him to release his St. Luke's medical records and
he refused. Three months later, on November 24, 2015, the
plaintiffs' counsel sent a medical authorization form for
Mr. Carbonniere's St. Luke's records to the United
States Attorney's Office, which that office forwarded to
Mr. Carbonniere on November 30, 2015. In a declaration, Mr.
Carbonniere stated that he did not sign the release form
because he wanted to maintain the confidentiality of his St.
Luke's records. Seven month later, on June 22, 2016, the
plaintiffs' counsel, without notice to Mr. Carbonniere,
sent a subpoena to St. Luke's for “all records
concerning the treatment” of Mr. Carbonniere by St.
Luke's “and any other professionals to whom your
facility referred him or from whom you received
records.” The plaintiffs' counsel gave St.
Luke's until July 13, 2016 in which to produce Mr.
Carbonniere's medical records. Rather than producing the
records to the plaintiffs' counsel, St. Luke's,
without notifying Mr. Carbonniere, sent the records directly
to the undersigned Judge, with the notation that it had
informed counsel for both sides that it was doing so because
“Pt auth not available.” In its cover letter,
dated July 12, 2016, St. Luke's stated that Mr.
Carbonniere's records were being sent to the undersigned
Judge under seal “as we have not received authorization
from the patient, nor a court order to disclose them to the
Subpoena was Untimely
Court concludes that the United States' motion should be
granted because the plaintiffs' subpoena to St.
Luke's was untimely. Pursuant to the Court's
amendment (Doc. 63), entered on November 17, 2015, to the
Scheduling Order (Doc. 37), the deadline to complete all fact
discovery was July 1, 2016. The Scheduling Order provided in
relevant part that “[d]iscovery which cannot be timely
responded to prior to the discovery deadline will be met with
disfavor, and could result in denial of an extension,
exclusion of evidence, or the imposition of other
sanctions.” Notwithstanding that the plaintiffs'
counsel knew about Mr. Carbonniere's treatment at St.
Luke's no later than August 28, 2015, the plaintiffs'
subpoena to St. Luke's for his medical records was not
issued until June 24, 2016, just six days before the fact
discovery deadline, and had a return date of July 13, 2016,
which was twelve days after the discovery deadline. The
plaintiffs did not seek an extension of the fact discovery
deadline and have not provided any explanation as to why they
could not have timely sought the St. Luke's records.
Subpoena Violates Federal Law
Court further, and more importantly, concludes that the
United States' motion should be granted because the
plaintiff's subpoena to St. Luke's was not sought or
issued in compliance with the Health Insurance Portability
and Accountability Act (“HIPAA”), 42 U.S.C.
§ 1320d et seq., and the pertinent regulations
promulgated pursuant to HIPAA.
governs the dissemination of protected health information,
and its regulations place strict limitations on the ability
of heath care providers to release a patient's medical
records or discuss the patient's medical history without
the express consent of the patient. The relevant regulation,
45 C.F.R. § 164.512(e), which provides for disclosures
during judicial and administrative procedures, applies to
medical information sought during discovery. Briefly stated,
this regulation provides in relevant part that, in the
absence of a court order authorizing the disclosure or the
submission to the court of a request for a qualified
protective order covering the disclosure, neither of which is
present here, a patient's records can only be disclosed
by a healthcare provider in response to a subpoena or
discovery request when (1) that request is accompanied by a
written statement by the requesting party satisfactorily
assuring the provider that the requesting party has made a
good faith attempt to provide written notice to the patient,
that the notice included sufficient information about the
litigation underlying the request to permit the patient to
raise an objection to the court, that the time for the
patient to raise an objection to the court has elapsed, and
that no objection was filed or that any filed objection had
been resolved by the court and the records being sought are
consistent with the court's resolution, §
164.512(e)(ii-iii), or (2) in the absence of the receipt of a
satisfactory assurance from the requesting party, that the
medical care provider has made the required reasonable effort
to notify the patient about the discovery request or has
sought to obtain a qualified protective order. §
164.512(e)(vi). A review of the subpoena-related documents
submitted to the Court by St. Luke's and the parties,
which include St. Luke's cover letter to the Court
confirming that it had not received any authorization from
Mr. Carbonniere for the disclosure of his records nor any
court order authorizing their disclosure, and Mr.
Carbonniere's declaration stating that neither the
plaintiffs' counsel nor St. Luke's contacted him to
indicate that his records were being sought via subpoena or
that they were going to be released to the Court, persuade
the Court that Mr. Carbonniere's records cannot be
disclosed to the plaintiffs because the regulatory
requirements of § 164.512(e) were not met.
United States argues for the first time in its reply that Mr.
Carbonniere's substance abuse treatment records are also
protected from disclosure under the Public Health Service Act
“(PHSA”), 42 U.S.C. § 290dd-2(a) and its
accompanying regulations. The United States asserts that St.
Luke's is a “federally assisted program” for
purposes of the PHSA pursuant to 42 C.F.R. § 2.11
because it conducts methadone maintenance treatment programs,
and pursuant to 42 C.F.R. § 2.12(b) because it is
licensed to dispense controlled substances as part of its
treatment programs as established by its DEA registration
number as a Narcotic Treatment Program. Assuming that St.
Luke's falls within the purview of the PHSA, which
appears to be the case, then in the absence of Mr.
Carbonniere's consent, the disclosure of his medical
records to the plaintiffs is only permissible “[i]f
authorized by an appropriate order of a court of competent
jurisdiction granted after application showing good cause
therefor, including the need to advert a substantial risk of
death or serious bodily harm.” § 290dd-2(b)(2)(C).
Nothing in the record of this action establishes that the
plaintiffs made any effort to comply with the PHSA, or its
relevant regulation governing the application for a court
order of disclosure, 42 C.F.R. § 2.64, before sending
its subpoena to St. Luke's.
United States primarily argues that the involuntary
disclosure of Mr. Carbonniere's medical records from St.
Luke's is barred by the federal psychotherapist-patient
privilege. The Court agrees with the United States that this
privilege constitutes yet another reason to grant its Rule
the Court is unpersuaded by the plaintiffs' contention
that the United States does not have standing to assert the
privilege on behalf of Mr. Carbonniere. As a party to this
action, the United States has the right to move for a
protective order pursuant to Rule 26(c)(1) on the ground that
the medical records sought by the plaintiffs are privileged
and thus outside the scope of discovery permitted by Rule
the Court disagrees with the plaintiffs' contention that
Mr. Carbonniere's records do not fall within the scope of
the privilege. The Supreme Court has recognized an absolute
psychotherapist-patient privilege for confidential
communications made to licensed psychiatrists, psychologists,
and social workers in the course of psychotherapy diagnosis
and treatment. Jaffee v. Redmond, 518 U.S.1, 15
(1996). The Ninth Circuit has expanded this
privilege to cover confidential communications made to
unlicensed counselors and representatives involved in
psychotherapeutic treatment undertaken through employee
assistance programs. Oleszko v. State Compensation
Insurance Fund, 243 F.3d 1154, 1158-59 (9th
Cir. 2001). Mr. Carbonniere has stated in a declaration that
his treatment at St. Luke's included ...