Shawn Donnell Parker vs Dawn Suzanne Lorenzo-Weeks
Case No: 17CV04610
Hearing Date: Wed Mar 20, 2019 9:30

Nature of Proceedings: Compel Compliance with SDT; Leave to File FAC; Case Management Conference

TENTATIVE RULING: The motion to compel is granted, as limited by the court below, but no sanctions will be awarded. The motion for leave to amend is granted, and plaintiff is directed to separately file his First Amended Complaint forthwith. To the extent that defendant believes the FAC is defective, the Court prefers to address such issues on demurrer or other appropriate motion.

This action arises from a motor vehicle accident. While plaintiff’s original complaint alleges that the accident occurred on October 16, 2017, that allegation was clearly a typographical error, as the complaint itself was filed 3 days prior to that date, on October 13, 2017. The complaint alleges that defendant’s conduct was in violation of laws related to speeding and DUI, and that she pled to a violation of Vehicle Code section 23152(e) on January 10, 2017, “based upon her conduct and behavior on the aforesaid date of October 16, 2015.” [Complaint @ ¶ 7.]

Plaintiff sustained injuries in the accident, including injuries to his neck, back, and knee. In discovery, he acknowledged prior injuries to his neck, back, and knee, in the course of his employment with Trader Joe’s. One incident occurred on 7/13/11, in which several cases of processed chickens fell on his neck, injuring his neck and back. Another incident occurred in 2012 or 2013, in which he fell, injuring and tearning the meniscus in his knee. Defense counsel has declared that plaintiff’s workers’ compensation file includes a report authored by Christopher Proctor, M.D., related to plaintiff’s prior right knee surgery, and attaches an Accommodation or Leave Request Dr. Proctor signed on July 27, 2017, on plaintiff’s behalf after that surgery. Counsel further declared that he has learned that plaintiff has undergone or will soon undergo surgery on his neck by Amy Wickman, M.D. Both physicians are affiliated with Alta Orthopaedics.

On August 27, 2018, defendant served a deposition subpoena for the production of business records, and the accompanying notice to consumer, upon the Alta Orthopaedic Medical Group, seeking all medical records of any kind and radiology images with respect to plaintiff from Christopher Proctor M.D. and Alta Orthopedics, from 10/16/2005 to the present. The subpoena required that the original business records be made available for inspection at Alta Orthopaedic’s business address by the attorney’s representative and permitting copying at its business address under reasonable conditions during normal business hours.

In a demand letter sent by defense counsel to the medical group on November 16, 2018, counsel stated that “To date, your office has not provided the copy service with records in a manner sufficient to render it in compliance with the Subpoena.” The letter demanded the “release” of plaintiff’s records in accordance with the terms of the Subpoena within the next 15 business days.

On February 5, 2019, defendant filed a motion to compel Alta Orthopaedic to comply with the records subpoena.

On February 19, 2019, plaintiff filed a motion for leave to file a First Amended Complaint, adding causes of action for negligence per se and willful and wanton misconduct, which he contends arise out of and relate to the same general set of facts as set forth in the original complaint. Defendant has opposed the motion, contending that the FAC is barred by the statute of limitations, that the new causes of action alleged in the FAC are insufficient to state actionable claims, and that the FAC fails to support a claim for punitive damages. Defendant further contends that she would be prejudiced by plaintiff’s delay in seeking leave to amend.

No trial date has been set in the action.

ANALYSIS: Motion to compel compliance The motion to compel compliance with the records subpoena will be granted in part, and the court will order Alta Orthopaedic to provide responsive records from 2010 to the present. No sanctions will be awarded.

The Court does not believe that defendant has shown any good cause to obtain records dating back as far as 2005, as sought by the subpoena. In seeking to compel compliance with the records subpoena, defendant was concerned with injuries sustained by plaintiff in workplace accidents in 2011 and 2012 or 2013. The Court has no information about whether Alta Orthopaedic has any records for plaintiff which predate his 2011 workplace injury. However, if it does, defendant has provided absolutely no justification for an intrusion into plaintiff’s privacy that goes back 6 years prior to the earliest injury about which defendant expressed any concern. On the showing currently made, the Court will require Alta Orthopaedic only to provide any responsive records it has from 2010 to the present.

Defendant has sought the imposition of sanctions against Alta Orthopaedic, based upon its failure to provide access to the responsive records. However, the motion does not provide argument or evidence sufficient to establish that Alta Orthopaedic’s failure to comply was without substantial justification.

First, it is not at all clear to the Court what the circumstances were under which defendant deemed Alta Orthopedic to have failed to comply with the requirements of the subpoena. The subpoena only required that Alta Orthopaedic make the records available for inspection and copying at its own place of business under reasonable conditions during normal business hours. The demand letter sent to Alta Orthopedic by defense counsel, however, states that the deponent had “not provided the copy service with records in a manner sufficient to render it in compliance with the Subpoena.” What that means, exactly, is not clear to the court. If the copy service appeared at Alta Orthopaedic’s business at the appointed date and time, and was denied entry or denied access to the records, that should have been expressly stated, through the declaration testimony provided under penalty of perjury by someone from the copy service. If the claimed failure to comply was a purported failure to provide the records to the copy service for copying outside of Alta Orthopaedic’s business premises, that was contrary to the express requirements of the subpoena.

Further, as a health care provider, Alta Orthopaedic is likely a “covered entity” bound by the provisions of HIPAA, with respect to the release of any person’s protected health information. HIPAA is a complex body of law, and this Court does not profess to have a comprehensive understanding of it. However, it would appear that 45 C.F.R., § 164.512(e)(1) would apply, under which a covered entity such as Alta Orthopaedic may disclose protected information in the course of a judicial proceeding in response to a court order, or in response to a subpoena. Where only a subpoena is present, the disclosure is permitted only under specified conditions under which (A) it receives satisfactory assurance that the party seeking the information has made reasonable efforts to ensure that the person who is the subject of the protected health information that has been requested has been given notice of the request, or (B) it receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by the party to secure a qualified protective order that meets specified requirements. (45 C.F.R., § 164.512, subd. (e)(1)(ii).)

There was no evidence before the court that would meet the requirements of subdivision (e)(1)(ii)(B) with respect to a protective order for the records. With respect to “notice” requirements subdivision (e)(1)(ii)A), Section 164.512(e)(1)(iii) sets forth the requirements for such “satisfactory assurances” that the person whose protected information is being sought has been properly notified. “Satisfactory assurances” of proper notification exist only if the covered entity receives from the party seeking the information 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.

Certainly, the requirements of subdivisions (e)(1)(iii)(A) and (B) were met by service of the deposition subpoena and notice to consumer. However, it does not appear that the documents served upon Alta Orthopaedic met the requirements of subdivision (e)(1)(iii)(C). Without that assurance, Alta Orthopedics could not be assured that its release of plaintiff’s records for copying would meet its obligations under HIPAA. That failure can be remedied by the provision of this court order requiring and authorizing Alta Orthopaedic to provide defendant with access to the records (see 45 C.F.R. § 164.512(e)(1)(i)), but it precludes the Court from being able to make any finding that Alta Orthopaedic’s failure to comply with the subpoena was “without substantial justification,” such that any award of sanctions would be appropriate.

Both based upon the failure to provide reasonable assurances within the meaning of HIPAA, and because of the failure to clearly articulate the manner in which Alta Orthopaedic had purportedly failed to comply with the subpoena, defendant has failed to provide the Court with sufficient information to support an award of sanctions against Alta Orthopaedic, and no sanctions will be awarded.

Motion for leave to file FAC The motion is granted; plaintiff is directed to separately file the FAC forthwith.

While the defendant contends that the FAC has significant defects, the Court prefers to handle those issues on subsequently-filed demurrer or other appropriate motion, rather in the context of a motion for leave to amend. In that way, the burdens are appropriately placed, in terms of establishing the validity or invalidity of the proposed amendments.

It is clear to the court that there could be no prejudice to defendant from the grant of this motion, particularly in light of the liberality with which courts are mandated to allow amendments to pleadings. No trial date has yet been scheduled in this case, and there is ample time to conduct any discovery made necessary by the amendments, should they survive an appropriate pleading challenge.