Case Number: EC057142    Hearing Date: September 03, 2014    Dept: 93

NOTE: ALL HEARINGS ON SEPTEMBER 3, 2014 ARE MOVED TO 3:30 P.M.

Superior Court of California
County of Los Angeles
Department 93

HAROLD WILLIAMSON,

Plaintiff(s),
v.

CHRISTINE LISA RUMFOLA, et al.,

Defendant(s). Case No.: EC057142

Hearing Date: September 3, 2014

[TENTATIVE] ORDER RE:
DEFENDANT CHRISTINE LISA RUMFOLA’S MOTION TO COMPEL SIGNED MEDICARE AUTHORIZATIONS, OR IN THE ALTERNATIVE, TO ENFORCE THE SETTLEMENT BETWEEN PLAINTIFF AND DEFENDANTS

Defendant Christine Lisa Rumfola’s Motion to Compel Signed Medicare Authorizations, or in the alternative, to Enforce the Settlement Between Plaintiff and Defendants is DENIED.

Background

The instant action was filed in November 2011, with trial scheduled for November 2013. Right before trial, Plaintiff signed a release of claims in exchange for a settlement of $15,000.00. (Motion, Conroy Decl. (“Conroy Decl.”) ¶3 and Exh. A.) At the Final Status Conference on November 12, 2013, Plaintiff and defense counsel represented that the matter had been settled. The trial date was vacated and the matter is set for an Order to Show Cause Re Dismissal after Settlement on November 7, 2014.

In the moving papers, counsel for Defendant Rumfola, Thomas Conroy, represents that after reaching the settlement, he learned that Plaintiff was a Medicare beneficiary. (Motion, Conroy Decl. ¶4.) It is the policy of Defendant’s insurance carrier, Farmers, to obtain a written statement from Medicare confirming whether Medicare paid anything on the plaintiff’s behalf prior to tendering the settlement check. (Conroy Decl. ¶4.) Defendant attempted to obtain an authorization from Plaintiff for release of his Medicare records to confirm whether Medicare paid him anything, but have been unable to get him to sign an authorization. (Conroy Decl. ¶¶6-9.)

Discussion

In moving to compel Plaintiff’s authorizations, Defendant relies entirely on federal law. (See Motion at 7 (citing Smith v. Maryland Casualty Co. (E.D. La. 1967) 42 F.R.D. 587, 589; Grove v. Aetna Casualty & Suretyship Co. (W.D. Penn. 1993); 855 F.Supp. 113, 116).) Although the Civil Discovery Act was intended to bring California law closer to the discovery provisions of the Federal Rules of Civil Procedure, California case law does not support the Court’s authority to compel such authorizations.
In Miranda v. 21st Century Ins. Co., the plaintiff made an underinsured motorist’s claim. ((2004) 117 Cal.App.4th 913, 917.) The defendant commenced discovery, which revealed that the plaintiff had been treated for post-concussion symptoms with Kaiser in 2000. (Id. at 918.) The defendant followed up with a subpoena to Kaiser, but Kaiser indicated it would only release the records with a signed authorization from the plaintiff. (Ibid.) The plaintiff refused to sign an authorization. (Ibid.) The defendant ultimately filed an action to commence discovery with the Superior Court and concurrently filed a motion to compel the plaintiff to sign an authorization for release of the records from Kaiser. (Id. at 918-919.) The motion was unopposed, and the trial court granted the motion. (Id. at 919.) The plaintiff continued to refuse to sign the authorization, and the trial court ultimately granted a motion to dismiss. (Ibid.) The plaintiff appealed, but the sole issue on the appeal was whether the trial court had jurisdiction to dismiss the case; the Court of Appeals did not rule on the propriety of the issuance of the order compelling the plaintiff to sign the authorizations. (Id. at 928-29.)

However, to the extent the Court of Appeals did address the issue, it was highly skeptical of the method of discovery. In a footnote, the Court noted:
“The record does not reflect the reason the medical facilities requested plaintiff’s authorization. Perhaps defendant did not comply with the procedures to obtain “personal records” of a “consumer” as required by section 1985.3 of the Code of Civil Procedure, in which case the medical facilities had a sufficient basis to refuse compliance. (CCP § 1985.3(k).) If section 1985.3 had been complied with, the record does not indicate why defendant did not simply move to compel compliance with the subpoena pursuant to section 1987.1, instead of pursuing an unwilling plaintiff for a signed authorization. These matters remain mysteries because of the scant record presented to the trial court.”

(Id. at 918-19.)

Defendant presents no California authority that Plaintiff can be compelled to sign an authorization for medical records. Indeed, this Court has attempted to find any California law on this issue, and it is not aware of any California case in which the Court compelled a party to sign a medical authorization. While federal cases have been held to be persuasive on discovery issues, the California appellate courts have held that the trial court does not have the power to create additional methods of discovery. (See, e.g., San Diego Unified Port Dist. V. Douglas E. Barnhart, Inc. (2002) 95 Cal.App.4th 1400, 1405 and the cases referenced therein.) In this case, where there are alternative remedies under California law, i.e., a subpoena for consumer records under Code of Civil Procedure section 1985.3, this Court is not prepared to create a new method of discovery in California, by allowing a motion to compel medical authorizations.

Moreover, Defendant does not present any evidence that it attempted to obtain the records under the California procedure by, as the Miranda court suggests, subpoenaing them and then moving to compel compliance with the subpoena. Therefore, the request to compel Plaintiff’s authorization for release of his medical records is denied.

To the extent the motion is characterized alternatively as a request to enforce the settlement between the parties, Defendant offers no legal authority to support that request. Finally, while Defendant Rumfola characterizes this case and the settlement as “languishing,” and that Defendants have “an unresolved litigation that is still open and hanging over their heads” (Motion at 5), this matter is set for an OSC re dismissal on November 7, 2014. This Court is hopeful that either a properly served subpoena or notice of this order and the upcoming November 7 date will move this action toward a prompt resolution.

Defendant is ordered to give notice.

Dated: September 3, 2014

_______________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court