United States District Court, D. Kansas
MARGARET A. MOSHER, Plaintiff,
THE ALARIS GROUP, INC., SARAH GERHART, R.N., and CATHOLIC MUTUAL RELIEF SOCIETY OF AMERICA, Defendants.
ORDER GRANTING MOTION FOR PROTECTIVE ORDER
J. JAMES, U.S. MAGISTRATE JUDGE
February 27, 2017, the Court held a telephone motion hearing
on the Motion for Protective Order (ECF No. 94) filed by
Defendant The Alaris Group, Inc. (“Alaris”).
Plaintiff appeared through counsel, Patrick A. Hamilton.
Defendants Alaris and Sarah Gerhart appeared through counsel,
Bart C. Sullivan and William P. Denning. Defendant Catholic
Mutual Insurance Company appeared through counsel, Jean Paul
Bradshaw, II and Sean T. Foley. After reviewing the briefing
and hearing argument from counsel, the Court grants the
Court finds that Plaintiff did not make a timely or valid
objection to the properly noticed deposition of Dr. Daniel
Spurlock. Indeed, Plaintiff concedes in her Opposition that
Dr. Spurlock's deposition was appropriately noticed and
Plaintiff's counsel consented to the deposition. Only
after arriving at Dr. Spurlock's office for the
deposition did Plaintiff raise a concern about Dr. Spurlock
testifying without a signed HIPAA authorization from
Plaintiff. At no time before or during Dr. Spurlock's
deposition did Plaintiff move for a protective order under
beginning of Dr. Spurlock's deposition, Plaintiff's
I wanted to make a record that Dr. Spurlock does not have a
signed HIPAA authorization from [Plaintiff] to discuss her
medical treatment or anything about that with anyone and that
while we can certainly depose Dr. Spurlock about the
authorizations his office received, what steps he took after
receiving that authorization and who he sent Maggie's
records to, it's my opinion that Dr. Spurlock is
proceeding at his own peril if he starts to testify about his
care and treatment of [Plaintiff].
statement, including counsel's stated
“opinion” and warning that Dr. Spurlock would be
“proceeding at his own peril” if he answered
questions without Plaintiff's signed authorization, had
the foreseeable effect of terminating Dr. Spurlock's
extent Plaintiff is now asserting objections, the Court
overrules Plaintiff's objections to the depositions of
Drs. Spurlock and Wheeler based upon the lack of a signed
HIPAA authorization or authorizations from Plaintiff. Counsel
for Plaintiff's stated basis for his
“opinion” regarding the risks of proceeding with
Dr. Spurlock's deposition in the absence of such
authorization was HIPAA. However, neither in Plaintiff's
Opposition, nor when questioned by the Court at the motion
hearing could Plaintiff's counsel cite any specific HIPAA
provision or any case law to support his opinion.
Additionally, Plaintiff's objection that the substance of
her medical records is not relevant to her claims-asserted
for the first time during the motion hearing-is not a valid
basis for prohibiting Defendant Alaris from deposing Dr.
Spurlock regarding Plaintiff's medical
health care provider can disclose medical information in
judicial proceedings without violating the Health Insurance
Portability and Accountability Act (“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. Specifically, HIPAA regulations set forth
in 45 C.F.R. § 164.512(e)(1)(ii)(A) allow a covered
entity to disclose protected health information in the course
of any judicial proceeding in response to a subpoena,
discovery request, or other lawful process, if “[t]he
covered entity receives satisfactory assurance . . . 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
Alaris gave notice to Plaintiff of its intent to depose Drs.
Spurlock and Wheeler. On February 2, 2017, Defendant Alaris
served a notice to take the deposition of Dr. Spurlock on
February 10, 20107 (ECF No. 87). On February 8, 2017, it
served a notice to take deposition of Dr. Wheeler on February
23, 2017 (ECF No. 91).
argued that she was not aware Defendant Alaris intended to
ask questions of Dr. Spurlock regarding Plaintiff's
medical records until the morning of Dr. Spurlock's
deposition. However, in her First Amended Complaint,
Plaintiff asserted a claim for intentional infliction of
emotional distress and Plaintiff had previously served
answers to interrogatories and disclosures referencing the
substance of Dr. Spurlock's medical records as a basis
for her damage claims. The Court therefore finds Plaintiff
knew or should have known when the depositions were noticed
that Defendant Alaris would ask questions of Dr. Spurlock
regarding the substance of Plaintiff's medical records.
The Court finds that Defendant Alaris provided notice to
Plaintiff in compliance with the above HIPAA regulation by
serving her with notices of the depositions.
Defendant Alaris shall be permitted to re-notice the
deposition of Dr. Daniel Spurlock for a date and time
mutually agreeable to the parties and Dr. Spurlock. The
parties shall likewise reschedule the deposition of Dr.
Wheeler for a date and time mutually agreeable to the parties
and Dr. Wheeler.
further eliminate any HIPAA-related concerns, the Court
hereby authorizes Dr. Daniel Spurlock and Dr. Eden Wheeler,
pursuant to the laws of Kansas and applicable federal law,
including but not limited to the Health Insurance Portability
and Accountability Act (“HIPAA”), to disclose in
this proceeding, including during their depositions,
protected health information within their care, custody, or
control concerning Plaintiff Margaret A. Mosher. The Court
orders counsel to provide a copy of this Order to Drs.
Spurlock and Wheeler prior to their depositions.
extent Plaintiff is asserting relevance objections to Drs.
Spurlock and Wheeler's deposition testimony, Plaintiff
may assert those objections to specific questions asked at
the depositions, but such relevance objections are not valid
bases for precluding the depositions altogether or for
essentially instructing the doctors not to answer questions.
order to further protect Plaintiff's privacy interests,
the Court further orders that the transcripts of the
depositions of Drs. Spurlock and Wheeler shall be SEALED, and
will be deemed confidential and subject to the Protective
Order (ECF No. 30) entered in this case, which provides that
confidential information be used or ...