2016-00198827-CU-MM

Allen Wade vs. Associates in Foot and Ankle Care, Inc.

Nature of Proceeding: Application for Order Sealing Record

Filed By: Gibson, Mark R.

Defendant Robert W Larsen DPM’s Motion for Order Sealing Record is unopposed and is granted.

Defendant seeks to seal the portions of the motion for summary judgment that refer to plaintiff’s private medical records and discuss private information contained within those records. Although the action has been dismissed, the motion to seal is granted.

This is an action for alleged professional (podiatric) negligence. Dr. Larsen filed a motion for summary judgment on the grounds that his treatment of plaintiff met the standard of care, and did not cause injury. The motion is supported by an expert declaration, attached to which are all of the medical records reviewed by the expert in order to arrive at his opinions. Those records and opinions consist entirely of plaintiffs confidential health care information. In order to protect plaintiffs right to privacy in that information, an order sealing the information is requested. As noted, it is unopposed by plaintiff. Plaintiff provides no waiver. See, e.g. 45 C.F.R. § 164.512(e)(1)(ii).

Court records are presumed to be open to the public. (CRC 2.550(c).) Therefore, a court order must be obtained to file a record under seal. (CRC 2.551 (a).

Per CRC 2.550, “[T]he court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is nanowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”

The Health Insurance Portability and Accountability Act (HIIPA), 42 U.S.C.S. § 300gg, et seq., governs confidentiality of medical records and regulates how covered entities can use or disclose individually identifiable medical information about an individual. 45 C.F.R. § 164.512. Plaintiff has a right to privacy in his health information protected by federal law and by the California Constitution. That right clearly overrides what is a virtually nonexistent need for the public to have access to that information; and therefore supports sealing the record. Given the sensitive nature of medical history, there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed. The proposed sealing is narrowly tailored so as to protect only plaintiffs health information, and there are no less restrictive means available to achieve the overriding interest in protecting that information. To the extent that the public has a right to know that a motion for summary judgment has been filed herein, then that right will be protected since the entirety of the motion has not been sealed.

The Court will sign the proposed order.