Judge: Ronald F. Frank, Case: 21STCV33519, Date: 2024-11-12 Tentative Ruling

Case Number: 21STCV33519    Hearing Date: November 12, 2024    Dept: 8

Tentative Ruling

HEARING DATE:                 November 12, 2024

CASE NUMBER:                  21STCV33519

CASE NAME:                        Tony Talbert v. New Image Dental, et al. 

MOVING PARTY:                Defendants, Marina Adams, D.D.S. and Marina Adams, DDS, a professional dental corporation da New Image Dental.

RESPONDING PARTY:       Plaintiff, Tony Talbert (No Opposition)

TRIAL DATE:                        June 2, 2025 

MOTION:                             (1) Motion to Compel Medical Authorization to be Signed by Plaintiff

                                                (2) Request for Monetary Sanctions.

Tentative Rulings:                   (1) DISCUSS.  The Court is interested as to why Plaintiff did not respond to the defense meet and confer efforts here, and why no opposition was field to this motion.  The Court is inclined to fashion some relief here, but more narrowly tailored to Plaintiff’s treatment at the VA hospital in connection with the subject assault which occurred on a specific date.

                                                (2) DISCUSS

I. BACKGROUND

A. Factual 

On September 10, 2021, plaintiff Tony Talbert filed a complaint against Defendants, Marina Adams, DDA, a Professional Dental Corporation dba New Image Dental; Marina Adams, DDC, Jay Layson, DDS, Rachal Liverman, DDS, Ahmed Mataria, DDS, and DOES 1 through 30. On March 23, 2022, Plaintiff filed a First Amended Complaint (“FAC”) for:  (1) dental malpractice, (2) lack of informed consent, (3) battery, (4) intentional misrepresentation, (5) negligent misrepresentation, and (6) concealment against several defendants, including defendant Rachal Liverman, D.D.S..

Defendant, Marina Adams, DDS subpoenaed records from the Veteran Affairs Greater Los Angeles Health Care System (“VA Hospital”) as part of discovery in this case to determine the nature and extent of Plaintiff’s injuries and Defendants’ potential liability for Plaintiff’s alleged injuries. Defendant seeks an order compelling Plaintiff to sign an authorization to have his VA records released.

B. Procedural

            On September 20, 2024, Defendants, Marina Adams, D.D.S. and Marina Adams, DDS, a professional dental corporation dba New Image Dental filed this Motion to Compel Medical Authorization from Plaintiff and Request for Sanctions. To date, no opposition brief has been filed.

II. ANALYSIS

            Despite Defendants’ argument, the court does not have express authority under the Discovery Act to compel a plaintiff to sign an authorization for release of records.  Case law on this particular issue is limited and that which does exist is not clear.  For example, in Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, on which Defendants rely heavily, the appellate court upheld the dismissal of an action where the plaintiff failed to comply with the court’s order to sign an authorization for release of records.  (Id. at pp. 918-919.)  However, in a footnote, the court stated it was not clear why the defendant moved to compel an authorization rather than compel compliance with a subpoena.  (Id. at p. 918, fn. 2.)  Defendant does not cite any authority, and the Court is unaware of any, that specifically gives the court express authority under the Discovery Act to compel a plaintiff to sign an authorization for release of records.  The fact that a trial court issued such an order in Miranda, discussed by the Fourth District at 117 Cal.App.4th  page 929, does not expressly stand for the proposition that the Court had statutory authorization to do so.

Citing Miranda, the Sixth District observed that “it would seem within the power of a court to require [a litigant’s] consent to disclosure on pain of discovery sanctions.”  (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446.)  Further, the Court has authority to compel a non-party’s compliance with a proper deposition subpoena for records.  A provider of health care shall not disclose medical information regarding a patient of the provider of health care without first obtaining an authorization, except where compelled by a court pursuant to an order of that court or by a party to a proceeding pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any authorizing discovery in a proceeding before a court or administrative agency.  (Civ. Code, § 56.10, subds. (a), (b)(1), (b)(3).)   This language seems to imply that the Court has authority to make an order to the medical provider to disclose medical information even if the patient has not signed a medical records authorization. 

According to the moving papers, Defendants requested by subpoena -- but without a signed medical records authorization -- that the VA produce the following:

“Any and all documents, records and printed, typewritten, handwritten, or drawn matters, of whatever character, and all reproductions thereof, including but not limited to, reports, records, ledgers, notes in written and/or electronic form, charts, correspondence in written and/or electronic form, communications in written and/or electronic form, letters, telegrams, handwritten notes, diaries, contracts, agreements, brochures, maps, diagrams, photographs, video, radiological exams and/or imaging studies, scans, myelograms, ultrasounds, films, MRI’s/ CT’s statistical charts, illustrations, publications and transcriptions by mechanical, electronic or photographic means such as punch cards, tape recordings, magnetic computer discs or microfilm, invoices, invoice receipts, books of account, bills, assignment of bills, liens, payments, loan and/or lending agreements, documents regarding cash advances, fee schedules, third party lien holders, factoring companies, bona fide purchasers of accounts receivables and financing companies, documents evidencing the negotiation of medical charges, authorizations for treatment, documents regarding the diagnosis and/or prognosis of medical injuries, conditions, and/or issues, informed consent and pain diagrams, admission sheets, hospital charts, emergency room records, communications in written and/or electronic form from any of the patient’s other health care providers who have treated or are treating the patient, all operative log notes including anesthesia, monitoring of vitals, documents evidencing disposable and/or durable supplies utilized, patient sign-in sheets, progress reports, progress notes, lab reports, physician’s charts, nurses charts, and records of any other medical personnel that refer, relate, or otherwise pertain to the examination, diagnosis, treatment, care and of…TONY TALBERT.”

(Hertzog Decl., ¶ 3, and Exhibit A-Deposition Subpoena to VA Hospital.)

This request is quite broad as phrased.  There is no limitation on the scope as to time, type of records sought, or any specific part of Plaintiff’s body he is claiming was injured.  On the other hand, only the medical records relating to Plaintiff’s injuries sustained in the incident giving rise to this suit or to prior injuries to those same areas of the body would be reasonably calculated to lead to admissible evidence in this matter.  Defendants are not entitled to all of Plaintiff’s records simply because he claims injuries from the incident. The Court is inclined to fashion some relief here, but more narrowly tailored to Plaintiff’s treatment at the VA hospital in connection with the subject assault.  The Court seek argument form counsel as to whether a narrowed scope of SDT can be prepared, whether Plaintiff will or will not sign a medical records authorization form were the Court to order him to do so, or whether the Court could or should have the Clerk sign such an authorization of Plaintiff’s behalf.