Judge: Michael E. Whitaker, Case: 21STCV02776, Date: 2023-02-07 Tentative Ruling

Case Number: 21STCV02776    Hearing Date: February 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiff Charlene Sedgh (Plaintiff) sued Defendant Yasmine Ashraf Armanios (Defendant) based on a motor vehicle collision.  Plaintiff moves to quash the subpoena for production of records Defendant served on Beverly Hills Concierge Doctors.  Plaintiff requests monetary sanctions in connection with the motion.  Defendant opposes the motion.  Plaintiff replies.  

ANALYSIS

If a subpoena requires the production of documents, the court may quash the subpoena entirely or modify it.  (Code Civ. Proc., § 1987.1, subd. (a).)  In ruling on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).)

Current discovery standards hold that, “any party may obtain discovery regarding any matter, not privileged,[1] that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  (Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1039 (hereafter Board of Nursing).)  “To meet this [test], a party seeking to compel [the] production of records . . . must articulate specific facts justifying the discovery sought; it may not rely on mere generalities.”  (Ibid.; see Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837 [finding that a subpoena was “insufficient” to compel production because it was “based wholly on the [party’s] alleged information and belief without any statement of supporting facts”].)  However, “[e]ven if information is otherwise discoverable, it may be protected by a constitutional or statutory privilege[,] [including] the right to privacy . . . .”  (Board of Nursing, supra, 59 Cal.App.5th at p. 1039.) 

            “The state Constitution expressly grants Californians a right of privacy.  Protection of informational privacy is the provision's central concern.  .  .  .  The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.^[2]  The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy.  A court must then balance these competing considerations.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [cleaned up].)

            “Legally recognized privacy interests [include] interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’) .  .  .  .”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)  “A particular class of information is [sensitive or confidential] when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.”  (Ibid.) 

            It is “well-settled” that “patients have a right to privacy with respect to information contained in . . . [their] medical records.”  (Grafilo v. Wolfsohn (2019) 33 Cal.App.5th 1024, 1034.)  Indeed, a patient’s right to privacy “is protected by case law as well as state and federal statutes and regulations.”  (County of Los Angeles v. Superior Court (2021) 65 Cal.App.5th 621, 641 (hereafter County of Los Angeles).)  Additionally, “[t]he privacy interest in psychiatric records is particularly strong, and in some respects, entitled to more robust protection than other types of medical records.”  (Grafilo v. Soorani (2019) 41 Cal.App.5th 497, 507.) 

            “As one court explained in discussing the examination of medical records vis-à-vis the right to privacy:  the information that may be recorded in a doctor’s files is broad-ranging.  The chronology of ailments and treatment is potentially sensitive.  Patients may disclose highly personal details of lifestyle and information concerning sources of stress and anxiety.  These are matters of great sensitivity going to the core of the concerns for the privacy of information about an individual.”  (County of Los Angeles, 65 Cal.App.5th at pp. 641–642 [cleaned up].) 

            In Britt v. Superior Court (1978) 20 Cal.3d 844, 859, it was recognized that “the filing of a lawsuit may implicitly bring about a partial waiver of one’s constitutional right of . . . privacy.”  However, the California Supreme Court held that “the scope of such ‘waiver’ must be narrowly rather than expansively construed.”   (Ibid.)  In other words, “while [a plaintiff] may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.”  (Ibid.)  Therefore, it follows that a patient cannot reasonably expect certain matters to remain private if they are related to the specific issues that the patient has himself brought before a court.  On the other hand, it is objectively reasonable to expect health care records that are unrelated to a current legal dispute to remain private.

Here, the subpoena served on Beverly Hills Concierge Doctors, on October 24, 2022, seeks the following:

Any and all documents and medical records pertaining to the examination, care, diagnosis, and treatment of the patient, including but not limited to all office, emergency room, inpatient and outpatient charts and records, nurse's notes, radiological reports, photographs, physical therapy and rehabilitation records including all descriptions of exercises prescribed; any and all records regarding prescriptions, including the type of medication, date prescription was filled, doctor who wrote the prescription, instructions on taking the medication, and dosage; and any other information available regarding the prescription(s);sign-in sheets, and documentation which indicate date(s) and time(s) of patient's appointments; all films, including X-Rays, MRI's , CT and CAT scans. BREAKDOWNS FOR APPROVAL All meds, bills and films from 1/2010 to present

(Declaration of Cathy Pantelic, Exhibit B.)

Plaintiff argues the medical and medical billing records sought are protected by her right to privacy.  Plaintiff attests that the subpoenas use overbroad language which do not limit the scope of the records requested by body part or reasonable time frame, and thus create risk of exposing irrelevant constitutionally protected information. 

In opposition, Defendant argues that because Plaintiff has placed a wide range of her body parts at issue[3], she is essentially claiming injuries from “her head to her toes, and everything in between.”  Based on this contention Defendant concludes that the subpoena cannot be limited.  However, in light of the Court’s recent rulings on January 11, 2023, and January 12, 2023 which ordered subpoenas be limited to the body parts claimed, Defendant has proposed new subpoena language to address the Court’s findings.  Defendant proposes the following modified subpoena language:

Any and all non-privileged documents and medical records for the time period of 10/24/2010 to the present, pertaining to the examination, care, diagnosis, and treatment of Catherine Sedgh (Date of Birth 6/12/1994) [“the patient’s”] and her following body parts:

all parts of the patient’s head, including but not limited to the upper and lower part of the head, skull, or cranium, its frontal, parietal and occipital lobes, regions or bones, as well as the nose, ears, eyes, forehead, mouth, and cheeks;

the patient’s jaw, including but not limited to all parts of the interior and exterior of the upper and lower jaw, jawbones, maxilla, mandible, and mouth area, including the bones, muscles, joints and skin;

the patient’s front back, upper and lower portions of the neck, cervical spine, cspine, and vertebrae, including the bones, muscles and skin;

the patient’s right shoulder, shoulder blades, upper arms, and all surrounding muscles, bones, skin and joints, including but not limited to the glenohumeral joint, the humerus, the scapula, and deltoid muscles;

the patient’s chest (also known as thorax) including but not limited to the lungs, heart and large blood vessels, part of the aorta, walls of the chest/thoracic wall, the dorsal vertebrae, ribs and breastbone, sternum, esophagus, trachea, bronchi, pleura, thymus, nerves, internal organs, and breasts;

the patient’s stomach and upper abdomen including but not limited to the stomach’s various sections (cardia, fundus, body, antrum, and pylorus), all surrounding muscles and other tissues such as the mucosa/stomach lining, submucosa (connective tissue, blood vessels, lymph vessels, and nerve cells), muscularis externa (primary muscle), serosa (membrane covering stomach), and the gastrointestinal tract;

the patient’s left and right arms (upper extremities/limbs) including but not limited to the upper arms, elbows, forearms, elbows, wrists, hands, and fingers and all surrounding muscles, bones, skin and joints including but not limited to the trapezius, serratus anterior, pectoralis major, latissimus dorsi, deltoid, rotator cuff muscles, humerus, triceps brachii, biceps brachii, brachialis, and brachioradialis;

the patient’s upper and lower portions of the back, thoracic spine, lumbar spine, vertebrae, sacrum, and coccyx, including the bones, skin, muscles, soft tissues, facet joints, backbone, intervertebral disks, spinal cord and nerves, tendons and ligaments;

the patient’s left and right legs (lower extremities/limbs) including but not limited to the hips, thighs, legs, knees, calves, feet, and toes and all surrounding muscles, bones, skin, nerves, tendons, ligaments, and joints including but not limited to the femur, hamstring, quadriceps, adductors, tibia, and shinbone;

and the patient’s mental/psychological condition;

including but not limited to: all office, emergency room, inpatient and outpatient charts and records, nurse’s notes, radiological reports, photographs, physical therapy and rehabilitation records including all descriptions of exercises prescribed; any and all records regarding prescriptions, including the type of medication, date prescription was filled, doctor who wrote the prescription, instructions on taking the medication, and dosage; and any other information available regarding the prescription(s); sign-in sheets, and documentation which indicate date(s) and time(s) of patient’s appointments; all films, including X-Rays, MRI's , CT and CAT scans, and breakdowns for approval.

(Defendant’s Opposition, pp. 2-3.) 

            Defendant attests that because the custodian of records are not medical doctors and to assure all records concerning the alleged body parts are received, the lay language used in plaintiff’s discovery responses, as well as the appropriate medical terminology is being used in order to assure all records pertaining to the examination, care, diagnosis, and treatment of the claimed injuries are released by the custodian.

            In reply, Plaintiff argues that Defendant’s proposed modified language remains overbroad because it still requests “any and all records from 2010 to present,” and further lists several subparts to each body part that are unrelated to Plaintiff’s claimed injuries and are thus overbroad.  The Court agrees.

Accordingly, the Court finds the language of the subpoena overbroad, indefinite as to a time frame of the records being sought, and are without reasonable limitation in scope.  Thus, there is a high probability that the subpoena as drafted could result in the disclosure of records that are unrelated to Plaintiff’s injuries at issue and are thus private and not discoverable.

Based upon the subpoena as currently crafted, Plaintiff has carried her threshold burden of establishing a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.  Defendant has failed to identify a legitimate interest, in light of Plaintiff’s discovery responses, that outweighs Plaintiff’s right to privacy in her medical records.

Plaintiff requests monetary sanctions in connection with the motion.  In ruling on a motion to quash, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”  (Code Civ. Proc., § 1987.2, subd. (a).)  Here, the Court finds that Defendant opposed the motion without substantial justification and the subpoena as initially crafted and proposed to be crafted is oppressive, warranting monetary sanctions.  Accordingly, the Court will impose monetary sanctions against Defendant and counsel for Defendant, Collinson, Daehnke, Inlow & Greco in the amount of $1000, which represents four hours of attorney time to prepare the moving papers, and attend the hearing, at $250 per hour.  

CONCLUSION AND ORDER

            Consequently, the Court grants Plaintiff’s motion to quash the subject subpoena and orders such subpoena quashed.   

Further, the Court orders Defendant and counsel for Defendant, Collinson, Daehnke, Inlow & Greco, jointly and severally to pay monetary sanctions in the amount of $1000 to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.