2013-00138381-CU-WT

Karryn Wilson vs. Air Systems of Sacramento

Nature of Proceeding:   Motion to Compel Authorization to Release Medical Records

Filed By:  Haynes, Derek J.

Defendant Air Systems of Sacramento, Inc.’s motion to compel Plaintiff Karryn Wilson
to authorize the release of her medical records and the deposition of her psychiatrist is
granted.

In this employment action, Plaintiff alleges that she is disabled within the meaning of
FEHA as a result of severe anxiety, panic attacks, depression and Border Personality
Disorder.  Plaintiff was terminated by Defendant on October 2012.  She asserts
disability discrimination and related causes of action.

Pursuant to a July 2013 protective order, Plaintiff authorized disclosure of her medical
records from October 6, 2009 to August 2013.  Defendant deposed Plaintiff in late
October 2013, during which she testified that her condition improved such that she has
been able to perform the essential functions of her job since November 3, 2012.  Her
discovery responses also indicate that she seeks lost wages from October 2012 to
present.

Defendant thereafter sought to have Plaintiff sign an authorization allowing it to obtain
updated medical records.  Defendant sought the records on the basis that it believes
that Plaintiff cannot seek lost wages for any period of time during which she has been  unable to work.  Defendant also sought to take the deposition of Plaintiff’s psychiatrist,
Dr. Khan, though was unable to do so absent Plaintiff’s authorization.  Plaintiff refused
to sign the authorization unless Defendant limited its inquiries to treatment prior to
August 2, 2013, maintaining that the continued request for records has made her
“apprehensive” about what she shared with her psychiatrist.  In addition, Plaintiff stated
that she would not seek anything other than “garden variety” emotional distress
damages after August 2, 2013 to avoid the need for additional medical record
production.  Defendant now moves to compel Plaintiff to sign authorizations allowing it
to depose Dr. Khan and to obtain updated psychiatric records.

Plaintiff opposes the motion arguing that she has not completely waived her right to
privacy over her medical history simply because she brought suit for discrimination and
emotional distress damages, that Defendant already has the records it needs to
determine whether Plaintiff could return to work in November 2012, and that Defendant
can assess whether Plaintiff can presently work by deposing Dr. Khan rather than
obtaining the medical records.

Here, Defendant is entitled to discover the psychiatric records and to take the
deposition of Dr. Khan, her treating psychiatrist given that she has placed the very
issues upon which Defendant seek discovery at issue and thus waived any right to
privacy.  While Plaintiff is correct that she has not completely waived her right to
privacy in all of her medical records, she has waived her right to privacy in the
information that is the subject of the instant motion.  “The patient-litigant exception of
Evidence Code § 1016, allows only a limited inquiry into the confidences of the
psychotherapist-patient relationship, and compels disclosure of only those matters
directly relevant to the nature of the specific emotional or mental condition which the
patient has voluntarily disclosed and tendered in his pleadings or in answer to
discovery inquiries.”  (In re Lifshcutz (1970) 2 Cal.3d 415, 436 [plaintiff making typical
allegations of “mental and emotional distress” arising out of physical assault, neither
disclosed jis entire medical history of treatment for mental or emotional conditions nor
realistically waived his interest in maintaining the confidentiality of that treatment].)

Contrary to Plaintiff’s argument, however, this is not a situation where she has only
made typical allegations of emotional distress arising out of a physical assault.
Indeed, Plaintiff alleges that she was placed on medical leave because of her “severe
anxiety, panic attacks, depression, and BPD.”  (E.g. Comp. ¶ 19.)  She alleges that
she was terminated as a result of these mental/emotional issues and that Defendant
failed to reasonably accommodate her.  In her deposition, Plaintiff testified that her
condition had improved such that she could return to work on November 3, 2012, and
in discovery responses asserts that she is entitled to lost wages through the present
because she would have been able to work had she not been terminated.  (Plf.’s depo
226:3-17; Plf’s response to Special Interrogatory 28.)  Thus, Plaintiff has placed her
specific emotional conditions at issue as they lie at the heart of her case against
Defendant.  For example, her entitlement to lost wages through present based on her
contention that she was able to return to work as of November 3, 2012 and would still
be working today depends on whether her mental/emotional conditions had improved
to the extent that she was able to return to work and could continue working.  Plaintiff
cannot, on the one hand, claim that she was placed on leave for specific
mental/emotional conditions for which Defendant ultimately terminated her even
though the conditions had improved enough to allow her to return to work and seek
damages in the form of lost wages on the basis that her condition has improved
enough such that she could and still would be able to return to work and yet deny
Defendant the ability to obtain her psychiatric records related to those conditions
through present day.

Plaintiff’s argument that she is agreeing to forego recovery of emotional distress
damage, other than “garden variety” emotional distress from August 2, 2013, going
forward does not change the result.  Indeed, she still seeks lost wages through
present, which as discussed above, directly involves the specific mental/emotional
conditions she has placed at issue in this litigation.  Further, while Defendant may
have her medical records through August 2013, this does not preclude Defendant from
obtaining updated records through present again because she seeks lost wages
through present and Defendant is entitled to discovery on that topic.  The argument
that Defendant can obtain such information regarding her present ability to work
through Dr. Khan’s deposition, or utilize written discovery, is also not a basis for
denying the motion as such an analysis would only be appropriate if the Court had not
already concluded that Plaintiff had waived her privacy rights to the medical records.

The motion is therefore granted.  No later than February 25, 2014, Plaintiff shall
provide authorizations for production of her updated psychiatric records and the
deposition of her psychiatrist Dr. Khan.

Defendant’s request for sanctions is denied as the Court finds that the motion was
opposed with substantial justification.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or other notice is required.