Case Number: BC609704 Hearing Date: May 30, 2018 Dept: 32

PRESTON BATY,

Plaintiff,

v.

WALGREEN’S CORPORATION,

Defendant.

Case No.: BC609704

Hearing Date: May 30, 2018

[TENTATIVE] order RE:

DEFENDANT WALGREEN’S MOTION FOR AN ORDER COMPELLING PLAINTIFF TO SIGN AUTHORIZATION FOR RELEASE OF MEDICAL RECORDS AND REQUEST FOR MONETARY SANCTIONS

BACKGROUND

As set forth in the first amended complaint (“FAC”), Plaintiff Preston Baty (“Plaintiff”) alleges that he was severely injured at a Walgreens store. Plaintiff asserts causes of action against Defendants Walgreen’s Corporation (“Walgreen”) and Sean Anderson (“Anderson”), a store employee, for (1) negligence; (2) negligent hiring/retention/supervision/training; (3) assault; and (4) battery.

DISCUSSION

Courts have compelled parties to sign authorizations for release of medical records. (Coats v. K-Mart Corporation (1989) 215 Cal.App.3d 961, 965; Miranda v. 21st Century Insurance Company (1994) 117 Cal.App.4th 913, 918.) However, the Court does not find dispositive statutory authority for compelling Plaintiff to sign authorizations for release of medical records in a situation where Plaintiff has refused to waive their rights under HIPAA, California’s Confidentiality of Medical Information Act, 42 CFR Part 2.

On July 21, 10217 Walgreen served a Deposition Subpoena for Production of Business Records on CMS Center for Medicare and Medicaid “(CMS”), the custodian of Medicare and Medicaid records for Mr. Baty. (Ufkes Decl. ¶5.) On July 31, 2017, Walgreen received notice from CMS stating that it would not release Mr. Baty’s records without a HIPPA compliant release authorization. (Ufkes Decl. ¶6.) Walgreen has requested that Mr. Baty sign the release on numerous occasions. (Ufkes Decl. ¶7.) Parties have met and conferred on the issue (Ufkes Decl ¶8; Exh. D; Stoll Decl. ¶5)

Walgreen contends there is good cause to compel Plaintiff to sign the medical records authorization because Mr. Baty has put his injuries and medical records in controversy. (See Complaint ¶16.) In opposition, Plaintiff contends the Attachment 3 to the Subpoena served on CMS is not limited in time, scope, or subject matter and would result in the disclosure of medical records about medical conditions unrelated to this lawsuit. (Opp Exh. A.) However, the authorization can limit what records will be product. Plaintiff asserts his right to privacy in medical records. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 864.) However, plaintiff has made his put his injuries and medical records in controversy. Plaintiff further asserts that a medical release authorization is improper because the other side can obtain medical records without giving notice to the consumer. However, Defendant’s compliance with CCP §1985.3 is required despite any release of authorization for medical records.

In the interests of equity and the public policy of allowing cases to be heard on the merits, if Plaintiff does not provide signed authorizations for release of these medical records, Plaintiff will not be allowed to use the contents of any medical records at trial to demonstrate damages or evidence of injuries. It would be unfair and unduly burdensome to Defendant to allow Plaintiff to present a portion of his medical records or evidence concerning his physical injuries at trial, but not allow defendants to obtain all of Plaintiff’s medical records concerning the injuries that are in controversy.