Deborah J. Tedford v. LLC (2014)

MEMORANDUM OF DECISION ON MOTION FOR A PROTECTIVE ORDER (# 121)

On July 12, 2013, non-party witness Susan Ford–MacDuff, a licensed marital and family therapist, moved (# 121.00) for a protective order:  a) quashing the defendants' subpoena duces tecum for her deposition regarding the content of her private therapy sessions with the plaintiff's decedent, Dennis A. Ferdon, and production of her psychotherapy notes and b) setting a reasonable fee for her appearance at the deposition if the court requires such an appearance.   On August 26, 2013, the defendants filed a memorandum in opposition to the motion.   The motion was argued on September 30, 2013.

DISCUSSION

Our state's Supreme Court has “long recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court ․” Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16–17, 905 A.2d 55 (2006).   Of course, “the rules of discovery, by facilitating an intensive search for the truth through accuracy and fairness, provide procedural mechanisms designed to make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.”  (Internal quotation marks omitted.)  Picketts v. International Playtex, Inc., 215 Conn. 490, 508, 576 A.2d 518 (1990).

The movant claims, first, that she cannot legally comply with the March 23, 2013 subpoena duces tecum for her deposition because the authorization provided by the plaintiff does not comply with the federal Health Information Portability and Accountability Act of 1996 (HIPAA) as required by 45 C.F.R. § 164.524 (“Access of individuals to protected health information”) and 45 C.F.R. § 164.501 (“Definitions”).¹  The movant argues that the most recent “HIPAA Compliant Medical Authorization” signed by the plaintiff and dated May 30, 2013, does not permit, let alone oblige, her to release her psychotherapy notes concerning her care of Mr. Ferdon in response to the subpoena.²  More particularly, the movant claims that the authorization is defective because 1) it does not name defendants' counsel as one of the authorized recipients of the notes;  2) it does not make clear that the person signing it and claiming to be authorized to do so is not the movant's patient;  and 3) it specifies “DO NOT DISCLOSE any information to any insurance company or their representative or to any other person without my prior written authorization.” ³  The movant also claims that she “cannot speak of her therapy sessions with the patient for the same reason she cannot produce her psychotherapy notes.”   The defendants claim that the motion should be denied because the authorization meets all the requirements of HIPAA set forth in § 164.508.⁴

45 C.F.R. § 164.508(c)(1)(ii) through (c)(1)(iv) require that, to comply with HIPAA, an authorization must specify the authorized user, the persons to whom the provider—the “covered entity”—may disclose, and each purpose of the requested use or disclosure.⁵  In this case, the signature of the plaintiff, the duly appointed administratrix of Mr. Ferdon's estate, is of course effective because she stands in the shoes of the movant's deceased patient.   See § 164.502(g)(1) (personal representative of individual is, with inapplicable exceptions, treated as the individual).   However, the signature does not make the content of the authorization what the defendants claim it to be.   The putative authorization is insufficient to permit, let alone require, disclosure of the movant's notes to anyone other than the designated recipient of those notes—the movant's attorneys, Wilson, Elser, Moskowitz, Edelman & Dicker.   Because of the explicit limitations in the authorization, and because the “purpose for such information is at the request of the patient” language does not fulfill the requirement of a blanket use authorization, the movant's attorneys are not authorized to disclose the notes to anyone else without further, advance, written authorization—particularly any insurance company or insurance company representative, including defendants' counsel and the public, as would (absent a most unusual court order) occur at trial of this action.   The motion to quash the subpoena duces tecum for the movant's psychotherapy notes is therefore granted.

If the defendants wish to depose the movant without her notes and without asking her any questions about the contents of her notes, privileged communications, or any professional opinion about what she observed about Mr. Ferdon—other than, for example, what a neighbor or greengrocer might have observed—the court finds no good cause in the present motion, or other legal cause, to prohibit the defendants from doing so (subject to the part of this decision concerning fees).   More likely, the plaintiff will provide a new authorization which satisfies the movant or, if necessary, the court.   The movant argues that, even if she is presented with a HIPAA-compliant authorization, she has no duty to obey the defendants' subpoena duces tecum for her psychotherapy notes because HIPAA grants her the authority to refuse to produce them.   To guide the parties, and the movant, toward avoiding, or at least narrowing, any future motion on the present topic, the court will address this second claim of the movant.

If this were simply a case of the patient or his personal representative seeking psychotherapy notes, the movant's argument would be sound.   As she asserts, a HIPAA regulation does provide that an individual patient has no right to his therapist's psychotherapy notes:  “[A]n individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set ․ except for:  (I) Psychotherapy notes ․” § 164.524(a)(1).   As already stated, under HIPAA, an individual's personal representative is, with inapplicable exceptions, to be treated as the individual. § 164.502(g)(1).⁶  The federal Department of Human Health and Services has specifically justified the additional protection afforded to psychotherapy notes as follows:  “[T]he rationale for providing special protection for psychotherapy notes is not only that they contain particularly sensitive information, but also that they are the personal notes of the therapist, intended to help him or her recall the therapy discussion and are of little or no use to others not involved in the therapy.   Information in these notes is not intended to communicate to, or even be seen by, persons other than the therapist.”  65 Fed.Reg. 82623 (December 28, 2000).

The present situation is not simply a case of the patient or his personal representative seeking psychotherapy notes.   That a psychotherapist may withhold psychotherapy notes from an individual patient does not mean the therapist cannot be required by court processes, let alone court order, to produce psychotherapy notes.  “[I]t does not follow from the fact that a patient is not allowed to inspect her own notes under section 164.524(a)(1)(I) that a court order plus a patient authorization are insufficient to permit the production of notes in a court proceeding ․ [T]here is no indication that the intent of HIPAA regulations was to shield psychotherapy notes entirely from discovery in a judicial proceeding.” ⁷  Kalinoski v. Evans, 377 F.Sup.2d 136, 138 n.3 (D.D.C.2005);  see also Townsend v. Shook, United States District Court, Docket No. 5:06CV70 (W.D.N.C. May 31, 2007) (citing Kalinoski, where plaintiff claimed emotional distress and provided waiver of psychotherapist-patient privilege, and psychotherapist's notes are essential to both plaintiff's and defendant's trial preparation, licensed marriage and family therapist was ordered to appear for deposition with notes, subject to protective order).

In Evenson v. Hartford Life & Annuity Ins., Co., 244 F.R.D. 666 (M.D.Fla.2007), a federal district court granted the defendant's motion to compel a psychotherapist to turn over notes related to alleged alcoholism suffered by the plaintiff's decedent.   The defendant, a life insurance company, argued that it was not required to pay the plaintiff, a third-party beneficiary of the decedent's policy, because the decedent had failed to disclose his ongoing treatment for alcoholism.  Id., 667.   The defendant requested the psychotherapy notes from the decedent's therapist and the plaintiff signed an authorization release.   The therapist refused to disclose the notes, arguing that, pursuant to HIPAA regulations, they were her property and she had no duty to disclose them.   The court rejected the therapist's claim, emphasizing that “HHS'[s] comments at the time the regulations were finalized state that it did not ‘intend to alter the rules of discovery.’  “ Id., 668, quoting 65 Fed.Reg. 82554 (December 28, 2000).   The court concluded that “[n]othing in the regulations limits the type of records subject to disclosure in response to a court order or subpoena” and, therefore, there was no legal basis for the therapist to withhold the notes.  Id.

45 C.F.R. § 164.512(e)(1)(i) and (e)(1)(ii) provide as follows:  “A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:  (i) In response to an order of a court or administrative tribunal, provided that the entity discloses only the protected health information expressly authorized by such order;  or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:  (A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request;  or (B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.” ⁸  See Kalinoski v. Evans, supra, 377 F.Sup.2d 138 n.3 (§ 164.512(e) provides that a covered entity may disclose psychotherapy notes in response to court order without patient authorization).   The defendants in this case cite no HIPAA regulation that requires a psychotherapist to obey a court's disclosure order, but such a regulation is hardly necessary:  “may disclose,” in 45 C.F.R. § 164.512(e)(1), cannot reasonably be interpreted to mean “shall have no obligation to obey a court order to disclose.”

It is not unusual for mental health records to be disclosed in litigation.   See, e.g., Staffey v. Hocurscak, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV–93–309433–S (February 1, 1996, Thim, J.) (records of plaintiff seeking compensation for emotional injuries);  Flokos v. Pilot Corp. of America, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–96–053428–S (July 22, 1997, Corradino, J.) (records of plaintiff claiming accident caused depression);  Kelly v. Giguere, Superior Court, judicial district of Tolland at Rockville, Docket No. CV–99–69450–S (December 19, 2000, Sferrazza, J.) (records of plaintiff claiming anxiety, headaches and mental distress);  see also General Statutes § 52–146p (disclosure of privileged communications between marital and family therapist and client);  General Statutes § 52–146p(b) (disclosure upon client's or authorized representative's written waiver of privilege).   Although this court has found no Connecticut case on the present HIPAA argument, the court finds the analysis in Evenson, Kalinoski and Townsend persuasive.   Accordingly, provided a proper authorization is presented to the movant, and of course subject to any limitation in that authorization and any protective or other stipulation of the parties, the movant must produce the psychotherapy notes created during her psychotherapy sessions with the late Mr. Ferdon.   This decision being partly conditional, it is without prejudice to reasonable motions which cannot be avoided by stipulation, such as for in camera review of the psychotherapy notes if there is a bona fide dispute as to whether part of them are outside the generally broad scope of discoverability.   See Barry v. Quality Steel Products, Inc., supra, 280 Conn. 16–17 (granting or denial of discovery discretionary);  see also Sidor v. Reno, United States District Court, Docket No. 95 Civ. 9588(KMW), 1998 WL 164823 (S.D.N.Y. April 7, 1998) (in camera review regarding whether psychiatric records are discoverable).

Finally, regarding the issue of a witness fee, the court finds it practically inevitable that, if she is deposed, the movant will be asked for her opinion, even if it is an arguably unprivileged point such as her opinion as to Mr. Ferdon's mood.   Pursuant to General Statutes § 52–260(f), it is ordered that, if and when the defendants depose the movant, they pay her $130.00 per hour for her time in traveling to and from the deposition and for the deposition itself, but not for any preparation time.

ORDER

For the foregoing reasons, the movant's motion for a protective order against disclosure of psychotherapy records is granted until such a time as the plaintiff or the defendants provide the movant, through counsel or with another subpoena duces tecum, an effective HIPAA authorization for disclosure of such notes.   This order is without prejudice to a deposition not requiring production of psychotherapy notes either without authorization (limited to fact questions described above) or with authorization, i.e., plaintiff's waiver of the marital and family therapist privilege.   This order is also without privilege to further motions as to matters which cannot be resolved by reasonable stipulations.   If the movant is deposed, she is to be compensated at the rate of $130.00 per hour for travel and time spent in the deposition.

Cole–Chu, J.

FOOTNOTES

FN1. References in this decision to § 164 will be to the respective section of Part 164 of Title 45 of the Code of Federal Regulations..  FN1. References in this decision to § 164 will be to the respective section of Part 164 of Title 45 of the Code of Federal Regulations.

FN2. The movant's papers do not name Mr. Ferdon but he has been regularly named throughout the filings with the court..  FN2. The movant's papers do not name Mr. Ferdon but he has been regularly named throughout the filings with the court.

FN3. Not mentioned by the movant is another limitation in the authorization:  “You are not authorized to speak with anyone, other than my attorneys Koskoff, Koskoff, & Bieder and current treating health care providers concerning my medical condition, care and treatment.”.  FN3. Not mentioned by the movant is another limitation in the authorization:  “You are not authorized to speak with anyone, other than my attorneys Koskoff, Koskoff, & Bieder and current treating health care providers concerning my medical condition, care and treatment.”

FN4. Though the movant does not cite 45 C.F.R. § 164.508, she does not dispute that that is at least one of the pertinent federal regulations..  FN4. Though the movant does not cite 45 C.F.R. § 164.508, she does not dispute that that is at least one of the pertinent federal regulations.

FN5. Regarding the third requirement, § 164.508(c)(1)(iv) permits “at the request of the individual” when detail is declined by the authorizing individual.   In this case, the authorization says “at the request of the patient”—who was not alive when the authorization was signed..  FN5. Regarding the third requirement, § 164.508(c)(1)(iv) permits “at the request of the individual” when detail is declined by the authorizing individual.   In this case, the authorization says “at the request of the patient”—who was not alive when the authorization was signed.

FN6. 45 C.F.R. Sec. 164.502(g)(1) provides as follows:  “Standard:  Personal representatives.   As specified in this paragraph, a covered entity must, except as provided in paragraphs (g)(3) and (g)(5) of this section, treat a personal representative as the individual for purposes of this subchapter [Code of Federal Regulations Title 45, Subtitle A, Subchapter C Administrative Data Standards and Related Requirements].”   Cf., Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1084–85 (9th Cir.2007) (under HIPAA regulation, only the subject of protected health information and, with limited exceptions, his or her personal representative are entitled to obtain copies of individual's medical records at cost-based fee)..  FN6. 45 C.F.R. Sec. 164.502(g)(1) provides as follows:  “Standard:  Personal representatives.   As specified in this paragraph, a covered entity must, except as provided in paragraphs (g)(3) and (g)(5) of this section, treat a personal representative as the individual for purposes of this subchapter [Code of Federal Regulations Title 45, Subtitle A, Subchapter C Administrative Data Standards and Related Requirements].”   Cf., Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1084–85 (9th Cir.2007) (under HIPAA regulation, only the subject of protected health information and, with limited exceptions, his or her personal representative are entitled to obtain copies of individual's medical records at cost-based fee).

FN7. The court in Kalinoski contrasted § 164.524(a)(1)(i) with a provision of the District of Columbia health code which explicitly prohibited disclosure of psychotherapy notes in all instances except medical malpractice litigation brought by the client against the therapist.  Kalinoski v. Evans, supra, 377 F.Sup.2d 138 n.3..  FN7. The court in Kalinoski contrasted § 164.524(a)(1)(i) with a provision of the District of Columbia health code which explicitly prohibited disclosure of psychotherapy notes in all instances except medical malpractice litigation brought by the client against the therapist.  Kalinoski v. Evans, supra, 377 F.Sup.2d 138 n.3.

FN8. In its entirety, 45 C.F.R. § 164.512(e) provides as follows:(e) Standard:  Disclosures for judicial and administrative proceedings—(1) Permitted disclosures.   A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order;  or(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request;  or(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal;  and(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:(1) No objections were filed;  or(2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.(iv) For the purposes of paragraph (e)(1 )(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute;  or(B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested;  and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.(vi) Notwithstanding paragraph (e)(1)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(iv) of this section.(2) Other uses and disclosures under this section.   The provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information..  FN8. In its entirety, 45 C.F.R. § 164.512(e) provides as follows:(e) Standard:  Disclosures for judicial and administrative proceedings—(1) Permitted disclosures.   A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order;  or(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request;  or(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.(iii) For the purposes of paragraph (e)(1)(ii)(A) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:(A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual's location is unknown, to mail a notice to the individual's last known address);(B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal;  and(C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and:(1) No objections were filed;  or(2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution.(iv) For the purposes of paragraph (e)(1 )(ii)(B) of this section, a covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that:(A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute;  or(B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested;  and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.(vi) Notwithstanding paragraph (e)(1)(ii) of this section, a covered entity may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(iv) of this section.(2) Other uses and disclosures under this section.   The provisions of this paragraph do not supersede other provisions of this section that otherwise permit or restrict uses or disclosures of protected health information.

Cole–Chu, Leeland J., J.