Smith v. Barrow Neurological Institute et al

Filing 234

ORDER denying plaintiff's 182 motion to modify protective order and/or for authority to provide confidential records to law enforcement, without prejudice. Signed by Judge Frederick J Martone on 8/24/2012.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Barrow Neurological Institute of St.)
Joseph's Hospital and Medical Center, et)
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al.,
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Defendants.
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Leanna Smith,

No. CV 10-01632-PHX-FJM
ORDER

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The court has before it plaintiff's motion to modify protective order and/or for

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authority to provide confidential records to law enforcement (doc. 182), Banner Health's

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response (doc. 196), Dignity Health defendants' joinder in response (doc. 199), and plaintiff's

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reply (doc. 211). On June 28, 2011, this court entered a protective order regarding release

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of confidential records and information (doc. 69). It ordered "that the production of

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'Confidential Information' is authorized for the limited purpose of use in this specific civil

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lawsuit" (id. at 1 (emphasis in original)). Plaintiff seeks an order modifying this protective

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order to allow release of confidential information about her daughter, C.R., to the United

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States Department of Justice ("DOJ").

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After filing her motion here, the juvenile court granted plaintiff's motion requesting

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release of confidential files from that case. The juvenile court authorized plaintiff to release

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"any and all confidential files, records and information of Child Protective Services ('CPS')

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and any and all records, documents, transcripts, testimony or reports in [C.R.'s] Juvenile

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Court proceeding in her possession to the United States Department of Justice, Civil Rights,

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Criminal Division ('DOJ') and to any law enforcement or state or federal agency" (doc. 211,

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ex. A). Plaintiff accordingly narrows her request here to "the Dignity Health records

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disclosed on June 3, 2012 and not contained in the Juvenile Court case records and files"

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(doc. 211 at 3).

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The statutes plaintiff cites in support of her motion do not provide authority for

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releasing confidential records. A.R.S. § 12-2235 simply defines the doctor-patient privilege.

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Section 12-2292 renders medical records privileged and confidential. Section 12-2294(A)

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provides that a health care provider shall disclose medical records without the patient's

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written authorization "as otherwise required by law or when ordered by a court or tribunal

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of competent jurisdiction." Section 41-1959 provides that records relating to investigations

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conducted by child protective services are confidential. Plaintiff also cites § 8-807, which

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authorizes CPS to release records to governmental agencies. But the only records at issue

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are records from defendant Dignity Health. Plaintiff has not shown that any statutory

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authority supports her request to release records to the DOJ.

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The holder of the doctor-patient privilege is the patient. C.R. was a minor when the

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records were created, but she was not a minor when they were disclosed in this case.

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Plaintiff is no longer C.R.'s legal guardian. C.R. is now the holder of the doctor-patient

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privilege with respect to her own medical records and she has not waived this privilege.

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"[M]odification of a protective order, like its original entry, is left to the discretion of

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the district court." United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th

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Cir. 1990) (cited in Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 472 (9th Cir. 1992)).

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In the parties' joint motion for restricted release of confidential records, the parties stated that

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the "release of the files, records and information is necessary and for the limited purpose of

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use in this specific civil lawsuit." (Doc. 61 at 3 (emphasis in original)). Based on this

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representation, the court ordered production of confidential information, including medical

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records, for use in this specific civil lawsuit. Defendants released records in reliance on the
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court's protective order. Medical records are privileged and confidential. The patient here

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has not waived her privilege. Plaintiff has not made the showing necessary to justify

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modifying the protective order.

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IT IS ORDERED DENYING plaintiff's motion to modify protective order and/or

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for authority to provide confidential records to law enforcement (doc. 182). This, of course,

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is without prejudice to the right, if any, of any non-party to seek records directly from

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defendants.

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DATED this 24th day of August, 2012.

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