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Howard v. Rustin

September 24, 2007

ELLA MAE HOWARD, ADMINISTRATRIX OF THE ESTATE OF VALERIA WHETSALL, DECEASED, O/B/O THE ESTATE OF VALERIA WHETSALL AND O/B/O THE WRONGFUL DEATH HEIRS, ET AL., PLAINTIFFS,
v.
RAMON C. RUSTIN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS WARDEN OF THE ALLEGHENY COUNTY JAIL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Nora Barry Fischer United States District Judge

MEMORANDUM ORDER

This matter is before the Court on (1) Plaintiffs' Motion to Compel Party to Answer Question at Deposition Upon Oral Examination [DE 68] ("First motion to compel"), filed by Plaintiff Ella Mae Howard, Administratrix of the Estate of Valeria Whetsall, deceased, and Edward and Dianne Sartori, consol Plaintiffs (collectively, "Plaintiffs") on July 30, 2007, and (2) Plaintiffs' Motion to Compel [DE 71] ("Second motion to compel"), filed by the Plaintiffs on August 13, 2007.

1. First Motion to Compel

As to the former motion, the Plaintiffs request an order compelling the following: (1) an answer to a question posed to Ms. Joan Stack, a former nurse at the Allegheny County Jail, during her deposition on June 6, 2007, and (2) the production of healthcare treatment policies and procedures. Based on the parties representation at the September 19, 2007 telephonic conference, the parties have reached an agreement as to the latter, and thus the Court only addresses the merits of the former.

In the motion, the Plaintiffs request an order from the Court requiring Ms. Stack to answer the following question, in various forms: "During the time period you were on duty on the 20th did you see any patients, inmates refused treatment?" (Docket No. 68, Ex. A, 52:23-24 (Stack Deposition)). At the deposition, counsel for Defendants Allegheny Correctional Health Services, Bruce Dixon, and Dana Philips (hereinafter collectively, "ACHS Defendants") objected, citing relevancy and the Health Insurance Portability and Accountability Act ("HIPAA"), Pub.L. 104-191, 110 Stat.1936, arguing that HIPAA prevents health care providers from disclosing "individually identifiable health information" when "there is a reasonable basis to believe that the information can be used to identify the individual." 45 C.F.R. § 160.103 (as defined by the Secretary of Health and Human Services).*fn1 In their response to the first motion to compel, filed on August 7, 2007, the ACHS Defendants reiterated these objections.*fn2 On August 14, 2007, the Court held a motion hearing, at which it heard argument and the parties' reiterated their positions. At the conclusion of the August 14, 2007 hearing, the Court took the motion under advisement.

As a threshold matter, the Court finds that the information sought via the disputed question to Ms. Stack, i.e., the refusal of treatment by other inmates, is plainly information which could potentially lead to admissible and relevant evidence in the instant case, which centers on the medical treatment of two specific inmates, namely the Plaintiffs.*fn3

In their respective briefs, the parties apparently contend that this dispute regarding the question posed to Ms. Stack hinges on whether her answer may provide a "reasonable basis to believe that the information can be used to identify the individual[s]", i.e., the inmates who refused treatment on the day in question. If so, the Defendants contend, the information qualifies as protected health information and HIPAA applies.

However, notwithstanding HIPAA's protection of "individually identifiable health information," within the context of judicial proceedings, HIPAA provides for the disclosure of medical information under the following circumstances:

(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:

(I) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or

(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:

(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or

(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.

45 C.F.R. ยง 164.512(e)(1)(I)-(ii). In other words, "a health care provider may disclose medical information without violating HIPAA if served with (1) a court order authorizing the disclosure of such information or, alternatively, (2) a formal discovery request accompanied by certain required assurances and notices." Harris v. Whittington, No. 06-1179-WEB, 2007 WL 164031, at *3 ...


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