2017-00212067-CU-PA

Leslie Hagan vs. Alan Castellanos-Tanori

Nature of Proceeding: Motion for Protective Order (Brown & Toland Medical Group)

Filed By: Hagan, Leslie

Self-represented Plaintiff Leslie Hagan’s motion for a protective order, or in the alternative, motion to quash the subpoena issued to Brown & Toland Medical Group is granted as set forth below.

In this personal injury action arising from a motor vehicle collision, Plaintiff alleges that she suffered serious injuries when she was rear-ended by a vehicle driven by Defendant Alan Castellanos-Tanori on May 12, 2015. The vehicle was allegedly owned by Defendant Luis Castellanos.

The Court received but did not consider Plaintiff’s reply filed and served on March 2, 2018, only two Court days prior to the hearing.

In a pre-litigation demand letter Plaintiff indicated that she had headaches, neck pain, spinal pain, back pain, right shoulder pain, sleep disturbances, dizziness, nausea, vomiting, incontinence, edema, issues walking, swollen feet, bilateral carpal tunnel, aggravation of preexisting shoulder injury and radiculopathy through upper and lower extremities. The complaint, however, does not specify any specific injuries. Defendants issued up to 50 subpoenas for the production of medical and billing records to numerous entities with whom Plaintiff has treated. The subpoenas have no limitations whatsoever as to time or subject matter and essentially seek every medical record for Plaintiff’s entire life regarding any treatment Plaintiff has ever received regarding any condition. In meet and confer efforts Defendants claimed they were entitled to such a broad range of documents due to the various ailments noted in Plaintiff’s pre-litigation demand letter which they asserted covered essentially every part of her body and her claim that the accident aggravated injuries from another car accident in addition to a subsequent accident. Plaintiff’s meet and confer correspondence requesting that the subpoenas be withdrawn stated that she was not claiming that Defendants aggravated any preexisting injury. The Court would note that in her case management statement Plaintiff indicates that she suffered “severe back &

right shoulder pain, headaches, incontinence…” (ROA 12) Defendants refused to withdraw the subpoenas but agreed to limit them to 10 years before the date of the subject accident. The following motion ensued.

Plaintiff moves for a protective order or alternatively to quash the subpoenas on the basis that they are overbroad and violate her right to privacy. The Court agrees.

There is no dispute that Plaintiff’s medical records are protected by the right to privacy. However, such right is not absolute and private information may be subject to discovery where the party seeking such discovery demonstrates a compelling need for the information and that the information cannot reasonably be obtained through less intrusive means of discovery such as depositions. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-526.) It is of course also true that the physician -patient privilege is waived as to physical or mental conditions placed at issue in a personal injury action such as the instant case. (Evid. Code §§ 996, 1016.) But even in such cases a party “is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [citations omitted].)

Here, Defendants argue that they are entitled to a broad scope of medical records on the basis that Plaintiff identified numerous ailments in a pre-litigation demand letter which they claim essentially encompass her entire body. They also point to the fact that in her demand she asserted that Defendants aggravated injuries from a previous accident and that Plaintiff provided certain medical records to them showing she received treatment at the subject facilities pre and post-accident. This was, however, a pre-litigation demand. As discussed above, the instant complaint does not identify any specific injuries and her case management statement stated that she suffered “severe back & right shoulder pain, headaches, incontinence…” Further, she indicated in her meet and confer correspondence that she is not claiming that Defendants aggravated a pre-existing injury from a previous accident.

Here, it is true that Plaintiff has placed her medical condition at issue with respect to the injuries for which she seeks recovery. She has not, however, tendered her entire medical history regarding every medical condition as to which she sought treatment over her entire life despite Defendants’ claims that her pre-lawsuit demand letter identified injuries that essentially covered her entire body. Not only was this letter before the lawsuit was filed, but as set forth above, her case management statement only identifies back and shoulder pain, headaches and incontinence. Defendants’ claim that they are unable to narrow the subpoenas is unpersuasive. Indeed, Defendants could, and apparently have, propounded discovery to Plaintiff which presumably includes discovery regarding the nature of the injuries for which Plaintiff seeks recovery. While Defendants’ counsel’s declaration indicates that the parties are disputing whether Plaintiff received that discovery, that issue is not before the Court. The Court simply notes that this basic discovery will allow Defendants to determine the specific injuries for which Plaintiff seeks recovery for and will provide guidelines for future medical records subpoenas.

The instant subpoena (along with the other identical subpoenas subject to the other motions on today’s calendar) was not narrowly tailored to address a specific body part, or records related to a specific l condition. Rather it requested all of Plaintiff’s medical records with no subject matter or temporal limitation. Plaintiff has certainly not

tendered here entire medical history by filing this lawsuit. Plaintiff is “entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment [she] may have undergone in the past.” (Britt, supra, 20 Cal.3d at 864.) Allowing Defendants to obtain the records here would entitle Defendants access to Plaintiff’s entire medical history. There simply is no showing that this unlimited request, not specifically tailored to any specific condition at issue in the lawsuit, seeks information that is directly relevant and essential to a fair resolution of the lawsuit. (Id. at 859-860.) Defendants’ offer to modify the subpoenas simply to limit the records to 10 years prior to the accident does not cure the overbreadth.

While a more narrowly tailored subpoena may be appropriate, the instant one which seeks medical records potentially related to any medical condition or treatment Plaintiff has ever sought is not and the Court will not undertake the task of defining what is appropriate. As a result, the motion to quash is granted, without prejudice to Defendants issuing an appropriate subpoena.

Given the above, the Court need not address Plaintiff’s claims that the subpoena did not contain an affidavit showing the materiality of the records under CCP § 1985.

Defendants’ request for sanctions is denied as the motion was successful.

Plaintiff’s request for sanctions made for the first time in reply is denied. As set forth above, the Court declined to consider Plaintiff’s untimely reply and in any event, sanctions were not requested in the moving papers