Chavez v. County of Larimer, Colorado et al

Filing 125

ORDER granting in part and denying in part 93 CHM Defendants' Motion for Execution of Release Authorizations or in the Alternative for a Disclosure Order Permitting Release of Medical Records, and granting in part and denying in part 102 CHM Defendants' Motion for Leave to Conduct Ex Parte Interviews of Plaintiff's Treating Healthcare Providers, by Magistrate Judge Michael E. Hegarty on 1/9/2012. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00988-MSK-MEH
MARTHA CHAVEZ,
Plaintiff,
v.
COUNTY OF LARIMER, COLORADO, et al.,
Defendants.
______________________________________________________________________________
ORDER ON CHM DEFENDANTS’ MOTIONS CONCERNING DISCOVERY FROM
PLAINTIFF’S HEALTH CARE PROVIDERS
______________________________________________________________________________
Before the Court are CHM Defendants’ Motion for Execution of Release Authorizations or
in the Alternative for a Disclosure Order Permitting Release of Medical Records [filed October 7,
2011; docket #93] and CHM Defendants’ Motion for Leave to Conduct Ex Parte Interviews of
Plaintiff’s Treating Healthcare Providers [filed November 2, 2011; docket #102]. These matters are
briefed and have been referred to this Court for resolution [Dockets #94 and #103]. Oral argument
would not materially assist the Court in adjudicating these motions. For the reasons stated below,
the Court grants in part and denies in part the motions.
Plaintiff alleges that while serving a 10-day jail sentence in the Larimer County Detention
Center, her serious medical needs (stemming from prior injuries) were ignored and she re-injured
herself as a result of the lack of care. In the Complaint, Plaintiff alleges that due to the Defendants’
wrongdoing, she “now suffers from a brain injury, has incurred severe damages, including a lifelong
handicap, permanent neurologic impairment, and considerable pain.” Complaint, ¶159.
The current motions boil down to whether the Court should allow ex parte interviews and

compel Plaintiff to execute medical release authorizations so that defense counsel can obtain medical
records directly from her health care providers, or whether Defendants must obtain her medical
records and information through her counsel and/or deposition testimony. As Defendants note, I
have previously addressed the medical records issue (in a case involving Plaintiff’s counsel) in
Cutting v. United States, No. 07-cv-02053-REB-MEH (Apr. 14, 2008). In that case, I determined
that justice required Plaintiff to execute medical record releases. In the current case, Defendants
request, in the alternative, a “Disclosure Order” under 45 C.F.R. § 164.512(e)(1)(I). The trend in
federal courts appears to be entry of such an order, as opposed to compelled medical releases. E.g.,
Lopez v. Cardenas Markets, Inc., 2011 WL 4738111, at 3-4 (D. Nev. Oct. 5, 2011); In re Denture
Cream Products Liability Litigation, 2011 WL 1979666, at 2 n.3 (S.D. Fla. May 20, 2011). Without
retreating from my analysis in Cutting, I view this as a valid middle ground and will direct such
disclosure authorized by the regulation. At the same time, I agree with some of Plaintiff’s
arguments concerning limiting the scope of the medical records sought (e.g., gynecological records,
records dating back 20 years).
Given that the accident which initially injured the Plaintiff occurred in late 2001, I find it
appropriate to include a baseline “normal” year, 2001, and all years subsequent, in the scope of the
records to be produced. I also adopt Plaintiff’s argument that gynecological records do not appear
relevant at this time and need not be disclosed until such time Defendants can establish that they are
relevant to Plaintiff’s alleged injuries for which she is seeking compensation (which may include
psychological injury).
Defendants also seek blanket approval of ex parte interviews with Plaintiff’s medical care
providers. After analyzing the parties’ respective positions, I believe that such interviews with

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former providers would promote efficiency here and are not barred by any privilege, privacy or
confidentiality doctrines. However, I adopt Plaintiff’s argument concerning contact with currently
treating providers, given the potential to interfere with the ongoing physician/patient relationship.
I would include one exception, although there may not be any providers in this class: Defendants
should be permitted to engage in ex parte communications with anyone who treated Plaintiff during
her 10-day detention, regardless of whether such person has an ongoing professional relationship
with Plaintiff. Detention officials have a constitutional obligation to provide necessary health care
while maintaining custody over an inmate, and anyone providing care during that period of custody
should be accessible to such officials.
Accordingly, for the reasons stated above, it is hereby ORDERED that CHM Defendants’
Motion for Execution of Release Authorizations or in the Alternative for a Disclosure Order
Permitting Release of Medical Records [filed October 7, 2011; docket #93] is granted in part and
denied in part and CHM Defendants’ Motion for Leave to Conduct Ex Parte Interviews of
Plaintiff’s Treating Healthcare Providers [filed November 2, 2011; docket #102] is granted in part
and denied in part as addressed herein. The Court’s disclosure order will be issued separately.
Dated at Denver, Colorado, this 9th day of January, 2012.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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