CIVIL ACTION NO. 03-cv-2486
February 26, 2004
The issue presented is whether medical records of Defendant David Brown ("Defendant Brown") in the possession of his employer, Defendant The Boeing Company, ("Defendant Boeing") must be produced to Plaintiff Patricia Acquarola ("Plaintiff") in this litigation. Plaintiff's Complaint asserts that Defendant Brown made death threats and committed various batteries against her, as a result of which he was arrested but acquitted. Plaintiff also sues Defendant Boeing for negligence and gender discrimination under Title VII, alleging that Boeing has in place safety measures for male employees far superior to anything in place to protect female employees. Although Defendant Brown countersued Plaintiff for various charges including intentional inflection of emotional distress, that specific claim has been withdrawn.
At the request of the Court, the parties filed briefs on this issue on January 30, 2004 and February 6, 2004. Plaintiff's motion does not directly seek an order requiring Boeing to produce the records of Brown, but instead seeks a court order to compel Brown to produce a signed medical authorization for release of health information to Boeing, authorizing Boeing to release all records in its possession relating to Brown's medical condition, mental condition and any treatment for drugs. Defendants challenge this motion on the grounds that Brown's medical records are not relevant to Plaintiff's case and are privileged.
Defendant Boeing, in its brief, explains that there are two sets of records that maybe responsive to Plaintiffs request. The first is the set of records kept at Boeing's Employment Assistance Program ("EAP"), a program providing free counseling services to employees at the Ridley Park facility, where Plaintiff and Defendant Brown work. The EAP is part of Boeing's Medical Department and is administered by Richard Buxton, a certified EAP counselor, who helps employees cope with personal issues including drug and alcohol use and medical problems by discussing these problems with them, identifying outside health care providers where necessary, and coordinating employees' care. (Declaration of Richard Buxton ¶¶ 1-5). Employees are told that conversations with Buxton and EAP records are kept confidential, and all records are kept in locked filing cabinets in a locked office, to which only Buxton has a key. Although Boeing Security has a key to the office door, no person has ever been in the office without Buxton present (Declaration of Richard Buxton ¶¶ 6-7).
The second type of record implicated by Plaintiff's request is the set of records kept at Boeing's Ridley Park Medical Department, a program staffed by licensed nurses that provides health care services to employees. The Medical Department records are treated as health care records, are kept confidential, and are stored in a locked office space to which only medical personnel have access. Information in these records is never disclosed to third parties without employee consent or a legal order (Declaration of Kathleen Patterson ¶¶ 2-4).
As there are two defendants challenging Plaintiff's motion to compel, there are two separate circumstances that must be addressed. Boeing is in possession of the records in question and challenges Plaintiff's motion as Brown's employer. Brown challenges the motion as the individual whose information, medical and otherwise, is contained in the records in question. This Court will address the issues relevant to each Defendant, in turn.
I. Relevance of Medical Records
For Defendant Boeing, the first issue is whether members of Boeing's management had access to or knowledge of Brown's records and, thus, whether these records are relevant to Plaintiff's case against Boeing. Boeing has made an initial showing, by the Buxton and Patterson declarations, that Defendant Brown's medical records were maintained in confidence by the EAP staff and that Boeing's management could not have accessed these records. If it is indeed the case that Brown's superiors at Boeing and members of the Boeing management could not have and did not access Brown's medical records, then these records are not relevant to Plaintiff's claims against Boeing. In other words, Plaintiff's only possible use of these records against Boeing is to support her allegation that Boeing failed to act on its knowledge of problems that Brown may have had. If Boeing's management or Brown's supervisors had no knowledge of the records, they are not relevant against Boeing. Defendant Boeing points out in its supplemental brief that because Plaintiff has not taken any depositions in this case, she has no evidence that members of Boeing's management could have or did access these records. It is possible that, once Plaintiff conducts additional discovery, Plaintiff will be able to present evidence of such access. If that is the case, then Defendant Brown's records will become relevant to Plaintiff's case against Boeing. The burden here is on Plaintiff to demonstrate knowledge of or access to these records by Boeing's management and thus far, Plaintiff has not met this burden.
However, even if members of Boeing's management had no idea of the contents of these records, it is possible that the records will contain information relevant to the issues presented in this case, including whether the records themselves were accessed by anyone outside the EAP staff. In addition, the records also may contain the identity of witnesses who have firsthand information about Brown's conduct or Boeing's conduct with respect to Brown. As it is impossible to know whether such information is in the records without examining them, the Court will conduct an in camera review of these records to identify any information relevant to Plaintiff's case.
II. Applicable Privileges and Protections for Medical Records
The issue presented as to Defendant Brown is whether the medical records are privileged under the psychotherapist-patient privilege or covered by medical privacy protections. Defendant Brown, in his brief, argues that these records are medical, rather than employment, records and thus are protected by doctor-patient confidentiality. Plaintiff argues that these are employment records that are discoverable.
A threshold issue is whether the federal law of privilege or the relevant state law applies to this case. In this case, federal jurisdiction is based on Plaintiffs claim against Defendant Boeing under Title VII. Jurisdiction over Plaintiff's claims against Defendant Brown, all of which are based in state law, is supplemental. Although Defendant Boeing does not raise an issue of privilege here, if Defendant Brown had not raised this issue or if Defendant Brown were not a party to this case, Defendant Boeing would have had standing to assert issues regarding the privacy of medical records on his behalf. U.S. v. Westinghouse, 638 F.2d 570, 574 (3d Cir. 1980).
The Third Circuit has held that federal law applies in a case based on federal question jurisdiction. Gannet v. First National, 546 F.2d 1072, 1076 (3d Cir. 1976). In cases where both federal and state law claims are raised, there is some disagreement among the circuits as to what law to apply, however, the Third Circuit has held that where both federal and state law claims are raised, and the evidence in question is applicable to both claims, there is a preference for the application of federal law. Pearson v. Miller, 211 F.3d 57, 65-66 (3d Cir. 2000). This rule is, in part, based on the goal of avoiding inconsistency in a case that has both state and federal law claims. See Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982) (stating that, where federal and state law claims are both presented, the federal rule favoring admissibility is preferred). In this case, both federal and state law claims are raised and the medical records in dispute here are applicable to both types of claims. In addition, this Court wishes to avoid inconsistency in the type of law applied and in the discovery rulings applicable to each defendant. Accordingly, this Court will apply the federal law of privilege.
Plaintiff has requested that Defendant Brown consent to a release of his medical records, in the possession of Boeing, relating to his medical condition and treatment for mental health conditions or drugs. The federal law of privilege recognizes a psychotherapist-patient privilege.Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996) (conversations between patient and psychotherapist and notes taken during counseling sessions protected from compelled disclosure under Rule 501). This privilege includes treatment by a physician, psychologist, or social worker for a mental or emotional condition, including drug addiction and does not require a balancing approach. Id at 16-17. It is clear that any information in Defendant Brown's medical records within the parameters of this privilege is protected from discovery. See Greet v. Zagrocki, 1996 U.S. Dist. LEXIS 18635 (E.D. Pa. 1996) (finding that records of Defendant's treatment from police department's Employee Assistance Program are protected underJaffee).
However, there are exceptions to the patient-psychotherapist privilege. A party can waive the privilege through voluntary disclosure to a third party. United States v. Ellis, 2003 U.S. Dist. LEXIS 9729 (E.D. Pa., May 8, 2003). In addition, a possible exception to the privilege is if a serious threat of harm to the patient or others can be averted only by disclosure by the therapist. Jaffee, 518 U.S. at 18, n. 19. It is not inconceivable that Brown's medical records include information that would implicate an exception to this privilege or information outside the parameters of the privilege. AlthoughGreet sets a high standard for Plaintiff to overcome before this Court will release the EAP records pertaining to Defendant Brown, the Court is not prepared to deny Plaintiff's motion outright without first examining the records. As it is not possible to know what information exists in the records without examining them, the Court will review the records in camera to determine whether any information in these records falls outside the patient-psychotherapist privilege.
In Jaffee, the Court emphasized the completeness of the privilege by rejecting a request to explicitly create an exception to the privilege. Rather, the Court pointed out that exceptions could exist, but chose to leave their development to future cases.
Neither federal common law nor federal statutory law recognizes a broad physician-patient privilege, although aspects of the physician-patient relationship may be protected by other privileges or by federal statutes. 3 Weinstein's Federal Evidence § 514.02-514.03 (2d ed. 1997). Defendant Brown has not raised any such privileges or statutes here. It should be noted that although Defendant Brown (and Defendant Boeing) asserted that the records were privileged in a telephone conference with the Court, as a result of which the Court allowed further briefing on the issues, and Plaintiff does discuss the issue of privilege, Defendant Brown only asserts a privilege of confidentiality with its source in United States constitutional law, and also cites federal law, 42 U.S.C. § 2000(a)(a)-l 1, a provision concerning the use of medical records in criminal proceedings, to assert that the "confidentiality of the records . . . makes them undiscoverable regardless of their contents." The Court rejects such a broad assertion of non-discoverability as to the medical records of one party in the possession of another party.
In addition, a patient's constitutional right to privacy may, in some circumstances, protect medical records. See In re Search Warrant (Sealed), 810 F.2d 67, 71-72 (3d Cir. 1987) (finding that patients have privacy interest in medical records, but that this protection is not absolute and must be balanced against state interests, in holding that medical records subject to search warrant in investigation of doctor for insurance fraud); Doe v. SEPTA, 72 F.3d 1133, 1138-39 (3d Cir. 1995) (finding that employee's right to privacy was not violated by employer's monitoring of a prescription drug program provided to employees). This same balancing test is articulated inWestinghouse, on which Defendants rely. U.S. v. Westinghouse, 638 F.2d at 578 (3d Cir. 1980). Westinghouse concerns the disclosure of employee medical records to the government based on a public health rationale, and the balancing test it outlines is intended to balance privacy concerns against governmental interests.Id. Although the case before this Court is not a case of governmental access to medical records, the same balancing of an individual's privacy against the public interest applies here. Thus, in considering those medical records not covered by the psychotherapist-patient privilege, the Court must consider the following factors.
[T]he type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury from disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.Westinghouse at 578.
Defendant Brown also argues, based on Pennsylvania law, that medical records are not discoverable unless he has put his own physical condition at issue. This argument misconstrues the relevant law in this case. If Defendant Brown had not withdrawn his emotional distress claim, and thus his emotional state remained an element of one of his claims, then the psychotherapist protections discussed above would have been subject to waiver, but that is no longer the case here. Defendant Brown also asserts that because he (and Plaintiff) are members of a collective bargaining unit at Boeing, this precludes discovery of the relevant documents because the collective bargaining agreement provides that Boeing cannot act against Brown based on information in his medical records. The Court finds, and Defendant Brown cites, no authority in support of this argument.
In addition, Plaintiff argues that Defendant Brown has somehow waived his right to protection of these records because these records are medical records that were released to Boeing. At this time the facts are uncontroverted that the medical records in dispute were compiled as part of the medical services provided by Boeing to its employees and not accessed by Boeing's management for employment purposes. Accordingly, Plaintiff's waiver argument fails.
Thus, to the extent Defendant Brown's records include records related to his treatment by a physician or psychotherapist for a mental or emotional condition or for drug treatment, those records are privileged. Any records not covered by this privilege must be assessed using the balancing test articulated above. In the present instance, however, it is not known specifically what kind of information the records in the possession of Boeing contain regarding Defendant Brown. For that reason, this Court will conduct an in camera review of these records and will allow the discovery of any relevant records not covered by the above-mentioned protections.
As discussed above, the Court will conduct an in camera review of Defendant Brown's medical records to determine whether any of these records are relevant to the issues in this case and whether any of these records are protected, as discussed above. If the Court finds that some records are discoverable, these records maybe protected from public disclosure at the Court's discretion. Fed.R.Civ.P. 26(c). See Pearson, 211 F.3d at 72-3.
An appropriate order follows.