2014-00160378-CU-MC

Quality Medical Roseville PC vs. Ted G Sneed

Nature of Proceeding: Motion for Preliminary Injunction

Filed By: Hill, Dennis B.

The OSC re: preliminary injunction precluding defendants from deleting or destroying
any of plaintiffs’ electronic medical/billing records while this action is pending and
plaintiffs’ motion for preliminary injunction requiring defendants to provide plaintiffs with
access to these electronic records while this action is pending is ruled on as follows.

This action was commenced on 3/18/2014. The complaint seeks both injunctive relief
and monetary damages against several defendants for a variety of alleged conduct,
including limiting access to the electronic medical/billing records relating to plaintiffs’
patients. On 3/25/2014 plaintiffs sought and obtained an ex parte order for a TRO
restraining defendants from deleting or destroying any of plaintiffs’ electronic
medical/billing records and for an OSC re: preliminary injunction. Pursuant to the
Court’s order, plaintiffs subsequently filed and served additional papers seeking a
preliminary injunction requiring defendants to provide plaintiffs with access to the
electronic records while this action is pending.

Defendant NextGen Healthcare Information Systems (“NextGen”) filed a “Response
and Limited Opposition” in which NextGen states that it has no objection to the
continuation of the Court’s 3/25/2014 “preservation order” relating to the electronic
medical/billing records relating to plaintiffs’ patients. However, NextGen contends that
plaintiffs’ request for additional relief in the form of a preliminary injunction requiring
defendants to provide plaintiffs with access to the electronic records while this action is
pending is not properly before the Court. Nevertheless, NextGen insists that it has
done nothing to limit access to the medical data at issue despite defendant Moore’s
non-payment of fees. Additionally, NextGen offers to assist in the transfer/export of
data from defendant Moore’s NextGen account but this transfer/export requires either
Moore’s consent or a court order, preferably the former, and NextGen being paid
applicable fees.

The remaining defendants, all of whom are individuals (including defendant Moore),
have purported to file a joint “Respnse [sic] and Limited Opposition” but this filing is
signed solely by defendant Kerr. Since Ms. Kerr is not an attorney licensed to practice
law in this state, she is not permitted to represent anyone but herself in this matter.
Accordingly, the “Respnse [sic] and Limited Opposition” is deemed to have been filed
solely on behalf of defendant Kerr herself. This response/opposition maintains that
one of the plaintiffs, Quality Medical – Roseville (Dr. Bakos), has “all along” had full
access to the medical records and that defendants are willing to negotiate an amicable
resolution to receive data files “once paid for.” The response/opposition further asserts
that Dr. Sneed has “no claim in this case” because “Moore Medical” has no medical or
billing records relating to his patients and because Dr. Sneed has not made any
payments to “Moore Medical.” The remainder of the response/opposition discusses a
number of additional points which have little legal relevance to the questions presented
here and even they did, they do not appear to be supported by any admissible
evidence. In their reply, plaintiffs confirm that NextGen has provided additional information
relative to the transfer/export of medical data from defendant Moore’s NextGen
account and that plaintiffs have indicated a willingness to pay the associated costs.
With respect to the “Respnse [sic] and Limited Opposition” signed solely by defendant
Kerr, the reply insists that defendant Moore has no right to “control” the medical
records even if she otherwise possesses the license to use the NextGen software or if
she has not been paid. Additionally, the reply asserts that one plaintiff continues to
have only limited access to the records in the NextGen system while the other has no
access at all. Finally, the reply requests that defendants return the two boxes of
records belonging to Dr. Sneed.

At the outset the Court notes “[T]he issuance of an injunction involves ‘…the exercise
of a delicate power, requiring great caution and sound discretion, and rarely, if ever,
should [it] be exercised in a doubtful case. [Citations.]’” (Paiva v. Nichols (2008) 168
Cal.App.4th 1007, 1021-1022 (citing Fleishman v. Sup. Court (2002) 102 Cal.App.4th
350, 355-356).) Among the factors to be considered when injunctive relief is sought is
whether the moving party will, absent such relief, suffer great or irreparable harm for
which pecuniary compensation would not afford adequate relief. (See, e.g., Code Civ.
Proc. §526(a)(2), (4); Jessen v. Keystone Sav. & Loan (1983) 142 Cal.App.3d 454,
457.)

Plaintiffs have established to the Court’s satisfaction not only that they will in the
absence of the requested injunctive relief likely suffer irreparable harm which cannot
be adequately compensated with money damages but also that they have a
reasonable probability of prevailing on the merits of their claims. To be sure, neither of
the two “limited” oppositions which were filed was sufficient to show that plaintiffs are
not likely to suffer irreparable harm or are not likely to prevail at trial. Accordingly, the
Court finds good cause to enjoin defendants from deleting or destroying any of
plaintiffs’ electronic medical/billing records while this action is pending and to require
defendants to provide plaintiffs with access to these electronic records while this action
is pending.

The parties are encouraged to assist in the prompt accomplishment of the relief
ordered here but in the event defendant Moore fails or refuses to voluntarily provide
access, NextGen is hereby permitted to take all reasonable action in order to assist
plaintiffs in securing access to their patients’ electronic medical/billing records as
provided herein.

With respect to the two boxes of Dr. Sneed’s records, defendants are encouraged to
promptly return them voluntarily but this Court is without jurisdiction to order them
returned since this relief was not included in either the 3/25/2014 ex parte order or in
plaintiffs’ supplemental moving papers. Defective service of notice deprives the Court
of jurisdiction to entertain plaintiffs’ request here but should defendants not voluntary
return the records, plaintiffs may file and serve an appropriate motion.

Plaintiffs to post an injunction bond in the amount of $10,000 no later than 4/25/2014.

The 3/25/2014 OSC is hereby discharged.