Hoosier v. Liu et al

Filing 34

ORDER GRANTING AS UNOPPOSED Defendant's 32 Motion for Protective Order--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff
v.

Case No. 2:16-10688
District Judge Denise Page Hood
Magistrate Judge Anthony P. Patti

WENDY LIU, et al.,
Defendants.
___________________________________/
ORDER GRANTING AS UNOPPOSED DEFENDANTS’ MOTION FOR
DISCLOSURE ORDER UNDER HIPAA (DE 32)
Plaintiff, Dwayne Hoosier, a state prisoner who is proceeding without the
assistance of counsel, filed his complaint and application to proceed without
prepayment of fees on February 24, 2016. (DE 1, 2.) Pending now is a motion
filed on October 19, 2016 by Defendants Wendy Liu, Badawi Abdellatif, Kim
Farris, Shi-Yu Tan, Rickey Coleman, Karen Rhodes and Steven Bergman
(collectively “Defendants”) for a disclosure order or protective order under the
Health Insurance Portability and Accountability Act (“HIPAA”). (DE 32.) For the
following reasons, the Court will GRANT Defendants’ motion for disclosure
order.

The gist of pro se Plaintiff’s complaint is that he received
improper/insufficient medical care from the Michigan Department of Corrections
(“MDOC”). As Defendants accurately assert, therefore, Plaintiff has placed his
medical history/condition during the events mentioned in the complaint at issue.
Under HIPAA, health care providers may disclose otherwise protected
health information without a person’s consent under certain exceptions. Among
the exceptions is disclosure made during a judicial proceeding under 45 C.F.R. §
164.512(e)(1). Specifically, “there are three ways in which Defendant[s] may
comply with 45 C.F.R. § 164.512(e)(1): [O]btaining a court order, sending a
subpoena or discovery request where plaintiff has been given notice of the request,
or sending a subpoena or discovery request where reasonable effort has been made
to obtain a qualified protective order.” Croskey v. BMW of North America, 2005
WL 4704767, at *2 (E.D. Mich. Nov. 10, 2005) (quotation marks omitted).
Specifically:
45 C.F.R. § 164.512(e) actually contemplates two kinds of orders: (1)
an order under 45 C.F.R. § 164.512(e)(1)(i) from the court expressly
authorizing disclosure (a "disclosure order") and (2) a qualified
protective order under 45 C.F.R. §164.512(e)(1)(ii)(B) and (e)(1)(v) (a
"qualified protective order"). These orders are applicable under
different circumstances. In the first instance, a covered entity may
disclose protected health information identified in the disclosure order
upon receipt of the disclosure order. In the second instance, where the
covered entity is responding to a subpoena, discovery request, or other
lawful process, that is not accompanied by a court order, the covered
entity may disclose protected health information if the covered entity
receives satisfactory assurance from the party seeking the information
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that reasonable efforts were made to obtain a qualified protective
order.
Brigham v. Colyer, 2010 WL 2010 WL 2131967, at *2 (D. Kan. May 27, 2010).
There is no indication that Defendants have sent subpoenas or discovery requests
to Plaintiff’s healthcare providers. “Rather, Defendants are seeking an order from
the Court allowing . . . ex parte communications with [Plaintiff’s] treating
physicians. Thus, although Defendants state they are seeking a ‘qualified
protective order,’ the Court concludes that Defendants are actually seeking a
disclosure order, as described in 45 C.F.R. § 164.512(e)(1)(i).” Id. The Court
therefore construes the motion at hand as seeking a disclosure order.
Local Rule 7.1(e)(2)(B) requires a response to a nondispositive motion to be
filed within fourteen days after service of the motion. That fourteen day period has
expired and Plaintiff has not filed a response to Defendants’ motion. The motion
for disclosure order, therefore, may be granted as unopposed.
In addition, the inherent nature of Plaintiff’s claims means that Defendants
may wish to contact Plaintiff’s healthcare providers. Such contact may be ex parte
in nature. See, e.g., Croskey, 2005 WL 4704767, at *4 (“To allow Plaintiff to
block the interview would be inconsistent with HIPAA's structure, and would
impede Defendant's access to evidence. For these reasons, 45 C.F.R. §
164.512(e)(1)(ii)(B), as defined by Section 164.512(e)(1)(v), does not require
specific notice to Plaintiff's counsel before Defendant conducts an ex parte
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interview with Plaintiff's treating physician. Nor does it require Plaintiff to consent
to such an interview.”)
Therefore, Defendants’ motion for disclosure order is GRANTED AS
UNOPPOSED such that Defendants may contact Plaintiff’s healthcare providers
ex parte regarding matters at issue in Plaintiff’s complaint. However, Plaintiff’s
healthcare providers are under no duty to voluntarily speak with Defendants’
counsel. Finally, all parties are reminded that formal discovery is stayed pending
resolution of a “motion for partial summary judgment on the pleadings,” except
formal discovery addressing whether Plaintiff exhausted his administrative
remedies. (See DE 33.)
IT IS SO ORDERED.

Dated: November 16, 2016

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on November 16, 2016, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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