A discovery dispute that started in an Indiana commercial tribunal wound up in federal court in Chicago when the defendants (St. Vincent Medical Group, St. Vincent Carmel Hospital and Hannah Thornton, R.N., N.P.) asked for an order — under the federal confidentiality law that provides special protection for treatment records of substance abuse programs — requiring Positive Sobriety Institute (called PSI) to hand over records concerning its evaluation and treatment of Jane Doe, a physician who sued the defendants for fraud, negligent misrepresentation, tortious interference and defamation.

Doe, an obstetrician-gynecologist, says she was steered into PSI’s Chicago program for medical professionals based on an allegedly false report that Thornton smelled alcohol on her breath while they were working at the hospital.

Responding to a discovery request in the Indiana case, PSI’s custodian of records gave an ambiguous response on what documents about Doe were being provided. The list from PSI said it was “including only [Doe’s] multidisciplinary comprehensive assessment, lab tests, history and physical, treatment plan, progress notes, discharge summary and billing statements.”

After an Indiana judge denied the defendants’ motion to force Doe to sign an authorization for records from PSI, the defendants filed a motion in the Northern District of Illinois under 42 U.S.C. Sec. 290dd-2 and 42 C.F.R. Secs. 2.63 and 2.64.

Providing a good overview of these laws, U.S. District Judge Sara L. Ellis denied the motion, because the defendants should have tried to clear up the ambiguity in the Indiana case. Doe v. St. Vincent Medical Group, No. 19 C 3777 (Oct. 8, 2019).

Here are highlights of Ellis’ opinion (with light editing and omissions not noted):

Section 290dd-2 protects the confidentiality of records containing the “identity, diagnosis, prognosis or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research, which is conducted, regulated or directly or indirectly assisted by any department or agency of the United States.” 42 U.S.C. Section 290dd-2(a).

Two regulations, 42 C.F.R. Secs. 2.63 and 2.64, control the process of disclosing these confidential records without the patient’s consent. Section 2.63 lists the three instances in which a court may order disclosure:

“(a) A court order under the regulations in this part may authorize disclosure of confidential communications made by a patient to a Part 2 program [an organization covered by Section 290dd-2(a)] in the course of diagnosis, treatment or referral for treatment only if:

“(1) The disclosure is necessary to protect against an existing threat to life or of serious bodily injury, including circumstances which constitute suspected child abuse and neglect and verbal threats against third parties;

“(2) The disclosure is necessary in connection with investigation or prosecution of an extremely serious crime allegedly committed by the patient, such as one which directly threatens loss of life or serious bodily injury, including homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse and neglect; or

“(3) The disclosure is in connection with litigation or an administrative proceeding in which the patient offers testimony or other evidence pertaining to the content of the confidential communications.” 42 C.F.R. Section 2.63.

If the request for disclosure meets one of these three criteria, the court must then determine that good cause exists to disclose these confidential records:

“(d) Criteria for entry of order. An order under this section may be entered only if the court determines that good cause exists. To make this determination the court must find that:

“(1) Other ways of obtaining the information are not available or would not be effective; and

“(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.” 42 C.F.R. Section 2.64.

These governing statutes and regulations “carry a strong presumption against disclosing records of this kind.” United States v. Cresta, 825 F.2d 538 (1st Cir. 1987).

Confidential communications requirements

The parties do not contend that this case falls under either of the first two situations. The court therefore turns to the third category, that the confidential records relate to litigation in which Doe “offers testimony or other evidence pertaining to the content of the confidential communications.”

First, the court notes that the scope of the remaining confidential communications that defendants want disclosed is undefined because there is some confusion as to the nature of the documents that PSI has yet to disclose. Doe and PSI have already disclosed various records to defendants “including only the multidisciplinary comprehensive assessment, lab tests, history and physical, treatment plan, progress notes, discharge summary and billing statements.” However, PSI’s use of “only” in that disclosure led defendants to believe that PSI had more records that it could disclose.

Defendants then contacted PSI asking the records custodian to “let [defendants] know what else hasn’t been sent to our offices.” Defendants find the response, “yes, we sent you all the documents,” ambiguous.

The court acknowledges that this could mean a few different things: [I]t could mean that PSI has in fact sent defendants all documents related to Doe, it could mean that PSI sent defendants all the documents in the various categories that it listed, or it could mean that PSI sent defendants all the documents that [d]efendants attached in their questioning email.

If the first instance were true, there would not be any remaining confidential communications under Section 2.63, because Doe would have disclosed all communications already, whereas in the other instances, there may still be some undefined remaining confidential communication.

Defendants contend that each instance is “just as likely.” Defendants now present this ambiguity as cause for their motion, without any showing of an attempt to clarify this ambiguity with the records custodian with whom they were in direct contact.

Without clarity here, the court has nothing more than defendants’ “reasonable belief” and assumptions to find that remaining confidential communications exist.

The court turns to the potentially more fruitful issue of whether Doe has offered or plans to offer testimony or other evidence pertaining to the potential remaining confidential communications. Defendants repeatedly argue that “Doe has placed her physical and mental condition at issue,” and therefore all PSI treatment records are “crucial to defendants’ defense.”

Unfortunately for defendants, “courts addressing the issue have determined that the mere fact that someone has filed a lawsuit and has put certain facts in issue does not constitute the requisite offering of testimony or evidence under Section 2.63(a)(3).” Teamsters v. Certified Grocers Midwest, 737 F. Supp. 1030 (N.D. Ill. 1990).

Defendants also argue in their reply that Doe is offering an expert to opine about her diagnosis and therefore, defendants are entitled to “PSI’s entire file” on Doe.

While defendants lament that their own expert has been limited to a review of the PSI records that Doe has already produced, defendants make no argument that Doe’s expert has reviewed or relied on any documents outside of that scope either. This leaves the mere fact that Doe has placed certain facts at issue in this case, which does not satisfy the requirements of Section 2.63(a)(3).

Section 2.64 Good Cause Determination

Though the court does not find that the potential remaining confidential communications satisfy the requirements of Section 2.63(a)(3), the court still turns to the issue of good cause.

As for the first prong of the good cause determination, “the court could find good cause for production of the patient records only if an alternative means of obtaining the information contained within them was not available. Good cause cannot be demonstrated when production of the records is merely cumulative.” In re B.S., 163 Vt. 445 (1995).

Doe argues that defendants cannot show good cause because Doe has already produced all of her treatment records. Indeed, the court agrees that issuing a court authorization for a subpoena for PSI records that defendants already have would be unreasonably cumulative or duplicative.

Because defendants have made no showing that this would not be cumulative or duplicative, the court cannot find that defendants have satisfied the first prong of the good cause determination.

Moreover, defendants cannot show that “the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.” 42 C.F.R. Section 2.64(d)(2).

Defendants again argue that Doe has put her physical and mental condition at issue and, therefore, “the concept of fundamental fairness dictates access to the treatment records because they are crucial to defending against” Doe’s claims. However, “this particular privilege is a strong one, not to be lightly set aside, and mere relevance to a potential defense is not enough.” Mosier v. American Home Patient, 170 F. Supp. 2d 1211 (N.D. Fl. 2001).

Just as it is not enough for defendants to claim mere relevance with regard to Section 2.63(a)(3), it is not enough here for defendants to invoke “fundamental fairness” without showing anything more than mere relevance, such as Doe offering testimony, evidence or expert opinion based on documents or records that she has not produced to defendants.

Defendants have made no such showing. If, as it appears to the court, Doe has produced her records with PSI, and bases her testimony and evidence within the scope of those records that she has already produced, then defendants have failed to show good cause.

Because defendants have failed to meet any of the criteria under Sectionn2.63(a) and the court cannot find good cause under Section 2.64(d), the court denies defendants’ motion to issue an authorizing order.