Labor
Logic
Law firm
sued over medical records
disclosure during litigation
By
John D. Finerty, Jr. and John L. Barlament
Michael Best & Friedrich
LLP
August
3, 2005
 |
| John
D. Finerty, Jr.
|
In
employment litigation, a former employee's medical records may be relevant to
a number of issues. For example, medical records are used routinely in worker's
compensation cases, disability claims and OSHA cases. However, does an employee
have a claim against defense counsel when company lawyers file a former employee's
medical records in a court case? One California plaintiff thinks so.
Rakich
v. Paul Hastings Janofsky & Walker
The
law firm of Paul Hastings Janofsky & Walker represented EMC Corp. as defense
counsel in a wrongful termination case brought by a former employee, Caron Rakich.
Not only did Rakich sue EMC Corp., but, she has also sued the Paul Hastings firm,
alleging the firm violated her right to privacy by disclosing medical information
during the course of litigation. According to Rakich's attorney, he filed a form
complaint alleging breach of privacy and is currently deciding whether to continue
pursuing the claim. If so, he intends to amend the complaint, possibly adding
additional claims.
Rakich
v. EMC Corp.
Caron
Rakich sued EMC Corp. in the U.S. District Court for the Northern District of
California for everything from misrepresentation to unfair business practices
— 14 causes of action in all. She sought both declaratory relief and monetary
damages, in addition to a permanent injunction. Rakich also wanted $1 million
in emotional distress damages.
During
the litigation, a discovery dispute developed over Rakich's medical records. Rakich's
claim for emotional distress over her termination, EMC's lawyers argued, put at
issue all medical evidence related to her emotional state of mind, including the
names of her doctors and all her medical records. Rakich and her attorneys refused
to turn over her medical records, citing privacy rights.
Paul
Hastings, on behalf of EMC, filed a motion to compel with a supporting declaration
that included as an exhibit an "evidence of insurability" form. The
U.S. Magistrate Judge in the case denied EMC's discovery request; Rakich claimed
the insurance form EMC filed in support of its motion disclosed private medical
information. The parties promptly agreed to seal the exhibit after the plaintiff
objected but, according to Rakich's attorney, the damage had already been done.
Wisconsin
Law on Medical Records Privacy
Sections
146.81 to 146.84 of the statutes governs the confidentiality of medical records
in Wisconsin. Under the statute, "All patient health care records [Health
Care Records] shall remain confidential." Wis. Stat. § 146.82(1). Health
care records "may be released only to [certain persons designated in Wis.
Stat. § 146.82(1)] or to other persons with the informed consent of the patient
or of a person authorized by the patient." Id. Thus, absent an "informed
consent" of the individual, no one may disclose health care records.
This
statute may apply to entities other than health care entities. The statute's penalty
provisions for example, Wis. Stat. § 146.84, apply to "[a]ny person,
including the state or any political subdivision of the state" who violates
Wis. Stat. § 146.82 or 146.83. Wis. Stat. § 146.84(1)(b), (bm). Similarly,
penalties (including a fine of up to $25,000 and up to 9 months in prison) can
be applied to "[w]hoever" obtains certain confidential information under
false pretenses or with knowledge that the disclosure is unlawful and not reasonably
necessary to protect another from harm. Wis. Stat. § 146.84(2)(a).
At
least one court has relied on this broad language in holding that these provisions
can apply to non-health care entities. In Hannigan v. Liberty Mutual Ins. Co.,
230 Wis.2d 746, 604 N.W.2d 33, 1999 WL 667303 (Wis. Ct. App. 1999) (unpublished),
the Wisconsin Court of Appeals held that this statute could apply to Liberty Mutual
Insurance Company and a law firm, Borgelt, Powell, Peterson & Frauen, S.C.
Note, however, that the opinion is unpublished and therefore has limited precedential
value; and another unpublished Wisconsin Court of Appeals decision seems to have
reached the opposite result, although with far less analysis.
Wistrom
v. Employers Ins. of Wausau, 249 Wis.2d 489, 639 N.W.2d 224, 2001 WL 1465314,
n.2 (Wis. Ct. App. 2001) (unpublished).
In
yet another unpublished decision, Korntved v. Advance Health Care, Case No. 2004AP1604
(Ct. App., Jul. 19, 2005), the court held that an employer could not be held liable
for the release of medical records by an employee who acted outside the scope
of her employment. In that case, a lab technician at Advanced Health Care accessed
and released the medical records of two patients. In doing so, the technician
breached Advance Health Care's confidentiality policy that she signed as a condition
of employment.
The court,
therefore, concluded the technician acted outside the scope of her employment
and, as a result, Advanced Health Care could not be held liable under the patient
health care records statute, Wis. Stats. § 146.82(1) or the privacy statute,
Wis. Stats. § 895.50.
Other
Considerations
Even
if the patient privacy statute applies to non-health care entities, such as law
firms, lawyers have a number of legal and practical tools at their disposal to
protect against these type of claims. First, Wisconsin recognizes a limited litigation
privilege that protects attorneys from third-party claims over statements made
or evidence presented, in good faith, during litigation. See Strid v. Converse,
111 Wis. 2d 418, 428-429 (1983) (discussing Goerke v. Vojvodich, 67 Wis. 2d 102;
and Langen v. Borkowski, 188 Wis. 277 (1925)). Second, the parties may stipulate,
or a party may seek a court order, to allow release of employee medical records;
compliance with a court discovery order is a dispositive defense to a breach of
privacy claim. See Wis. Stats. § 146.82(2)(A)(4).
For
more information on these issues or for assistance with employment litigation,
contact John D. Finerty, Jr. or John L. Barlament at Michael Best & Friedrich
LLP.
