2016-00200641-CU-MM

Krista Noonan vs. George Lian, M.D.

Nature of Proceeding: Application for Order Sealing Record

Filed By: Barnas, Jason S.

Defendant George Lian, M.D.’s motion to seal portions of documents to be filed in connection with his motion for summary judgment is denied.

The Court considered Plaintiff untimely opposition filed and served only five days before the hearing given the nature of the opposition which demonstrates that there is no need for a sealing order. Defendant was able to file a complete reply.

Defendant moves to seal certain portions of his memorandum of points and authorities in support of his motion for summary judgment, portions of his separate statement, and portions of the declarations of Murali Mooorthy, M.D., Defendant and Jason Barnas.

The portions of the documents to be sealed consist of Plaintiff’s medical records and/or reference Plaintiff’s private medical information. The unredacted documents were conditionally lodged under seal on December 21, 2017 and redacted versions were filed the same day.

In order to issue the requested order, the Court must find that there is an overriding interest to support the sealing of these records; that there is a substantial probability that the parties’ interest will be prejudiced absent sealing; that the proposed sealing is narrowly tailored to serve the parties’ interest; and that there is no less restrictive means of achieving the overriding interest. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292; CRC 2.550(d).)

Here, the Court finds that the requirements of California Rules of Court, Rule 2.550 and 2.551 have not been met with respect to the documents listed in its motion which it seeks to seal. While Defendant asserts that the information consists of Plaintiff’s medical records and contains Plaintiff’s medical information, Plaintiff has submitted a declaration stating that she has no interest in preventing public disclosure of her medical records and in fact wants the records publicly available. (Meade Decl. Exh. A. [Noonan Decl. ¶ 3].) In these circumstances, the Court cannot find that there is any privacy interest that overcomes public access to the information, that any interest supports sealing, that there is a substantial probability that the interest will be prejudiced without sealing, the sealing is narrowly tailored, and there is no less restrictive means to achieve the overriding interest. Plaintiff has expressly waived any privacy rights. Even HIPAA recognizes a patient’s right to waive her right to privacy in her medical records.

Defendant argues in reply that Plaintiff’s medical records are confidential based on federal law (HIPAA) though he provides no analysis at all nor any citation to any authority. He argues that CRC Rule 2.550(a)(2) does not apply when records are “required to be kept confidential at law.” Defendant argues that Plaintiff has not executed a HIPPA authorization. However, even HIPAA recognizes a patient’s right to waive her right to privacy in her medical records. See, e.g. 45 C.F.R. § 164.512(e)(1) (ii). Indeed, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.S. §§ 1320d-1329d-8, expressly provides that a patient’s health information may be disclosed in a judicial or administrative proceeding, subject to specified regulations. 45 C.F.R. § 164.512(e). Here, Plaintiff has expressly stated she wishes public disclosure. In any event, the Court fails to see how HIPPA is implicated here. Indeed, Plaintiff has filed the instant lawsuit putting her medical condition at issue and has made clear in opposition to the instant motion to seal that she essentially wants the records to be available to the public. She has waived any rights to privacy in her medical records. Defendant cannot be accused of violating Plaintiff’s HIPAA rights.

Defendant also argues that he will be potentially prejudiced if the instant motion is not granted because Sacramento County Superior Courts routinely deny motions for summary judgment when the medical records are unredacted because disclosure constitutes a HIPAA violation. He asserts that if his motion to seal is denied then his motion for summary judgment could be as well because the records are unredacted and thus Plaintiff would essentially defeat his motion for summary judgment because the records are unredacted not by challenging the merits. The Court is not persuaded and rejects these arguments. The Court sees no potential prejudice here as Plaintiff has expressly waived her privacy rights in the medical records and expressly wants them open to the public. The Court fails to see how Plaintiff could successfully assert that the motion for summary judgment could be denied because her records, as to which she has waived any right to privacy, were unredacted. The practical effect of this ruling is simply that the records that Defendant conditionally lodged under seal will be filed unsealed if he notifies the Court in accordance with the Rules of Court. Defendant’s motion for summary judgment will then proceed with the entirety of the medical records unredacted. There is no prejudice to Defendant if this motion is denied. The Court’s ruling herein does not implicate the later motion for summary judgment.

As a result, the motion to seal is denied.

To the extent that Defendant wants the records lodged conditionally under seal on December 21, 2017, filed unsealed, he must notify the court within 10 days of this order pursuant to CRC 2.551(b)(6).