Cabotage v. Ohio Hospital for Psychiatry, LLC et al

Filing 29

OPINION AND ORDER denying 13 OHP's Motion for Return of Confidential Patient Information. Plaintiff, howeverm is PRECLUDED from utilizing any of the documents that she removed from OHP in connection with her investigation of OHP's potential violation of professional or clinical standards in the instant action. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/27/2012. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CATHERINE CABOTAGE,
Plaintiff,
Civil Action 2:11-cv-50
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

OHIO HOSPITAL FOR
PSYCHIATRY, LLC. et al.,
Defendants.
OPINION AND ORDER
Plaintiff, Catherine Cabotage, brings this employment action against Defendants, Ohio
Hospital for Psychiatry, LLC (“OHP”) and Behavioral Centers of America, LLC (“BCA”),
arising from Defendants’ termination of her employment. She alleges violations of the False
Claims Act, 31 U.S.C. § 3729 et seq.; the Ohio’s Nurses Whistleblower Act, Ohio Rev. Code §
4723.33; and Ohio’s public policy. This matter is before the Court for consideration of OHP’s
Motion for Return of Confidential Patient Information (ECF No. 13), Plaintiff’s Memorandum in
Opposition (ECF No. 14), and OHP’s Reply (ECF No. 16). For the reasons that follow, OHP’s
Motion is DENIED.
I.
BCA employed Plaintiff as a full-time registered nurse at OHP from November 2009 to
March 2010. According to Plaintiff, during her employment at OHP, she became concerned that
the Medical Director was engaged in fraudulent and illegal activities. Plaintiff’s concerns
prompted her to gather evidence to support her suspicions. For example, she began recording
her observations of the Medical Director’s activities on forms that listed patients’ names, ages,

and room numbers. Plaintiff eventually removed these documents, along with the Director’s
patient notes, from OHP and took them to her home. She subsequently provided copies of these
removed documents to an investigator from the Department of Health and Human Services. The
investigator ultimately concluded that the agency would not pursue a claim against OHP for
misconduct. Plaintiff also disclosed the documents to her attorney.
OHP terminated Plaintiff on March 8, 2010, for “fraternizing with patients’ families
outside of work” in violation of OHP’s confidentiality policies. (Compl. ¶¶ 44–45, 52–54, ECF
No. 2.) OHP maintains that Plaintiff improperly contacted a patient’s family member from an
off-premises location without authorization and wrongfully removed patient-identifying
protected health information to make the phone call. As a result of her termination, Plaintiff
brought claims against OHP and BCA under the False Claims Act, 31 U.S.C. § 3729 et seq.; and
the Ohio’s Nurses Whistleblower Act, O.R.C. § 4723.33.
OHP learned through discovery requests that Plaintiff possessed OHP documents
containing protected health information. OHP requested that Plaintiff return of the confidential
documents on November 3, 2011, and renewed that request on December 19, 2011. Plaintiff did
not return the documents to OHP. Plaintiff’s refusal to return the documents prompted OHP to
file the subject Motion for Return of Confidential Patient Information. (ECF No. 13.) OHP
seeks a Court order directing Plaintiff to return the confidential documents she took during the
course of her employment at OHP.
In support of its Motion, OHP contends that the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”) requires it to seek the return of the documents at issue
because those documents contain confidential, protected health information of OHP patients who
have no interest in the instant case. OHP maintains that Plaintiff has no legitimate reason to
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continue to retain the documents at issue given that she is no longer investigating claims against
OHP relating to its professional or clinical standards of care.
Plaintiff does not dispute that she is no longer investigating her suspicions concerning
OHP’s potential violation of professional or clinical standards. She nevertheless posits that
HIPAA’s Whistleblower Provision, 45 C.F.R. § 164.502(j), authorizes her to retain possession of
the documents. She asserts that she “needs to retain possession of these documents” so that she
may utilize them in the instant action. (Pl.’s Mem. in Opp. 6–7, ECF No. 14.) By way of
example, Plaintiff indicates the documents at issue will assist her in establishing a prima facie
case of retaliation and also in rebutting the testimony of one of OHP’s witnesses. She asks the
Court to deny OHP’s Motion. Alternatively, she suggests that the Court take possession of the
documents, permitting her to utilize them, if necessary, to prove an element of her retaliation
claim or to rebut testimony.
II.
The Court must deny OHP’s Motion because it lacks authority to award OHP the relief it
requests. Neither party directly addresses this issue. Instead, the parties focus their briefing on
whether or not Plaintiff’s removal and continued retention of the documents at issue runs afoul
of HIPAA, apparently assuming that the Act confers jurisdiction upon this Court to remedy
violations private parties bring to its attention. It does not. On this point, Kissenger v. Reporters
Comm. for Freedom of the Press, 445 U.S. 136 (1980), is instructive.
In Kissenger, journalists filed a request under the Freedom of Information Act (“FOIA”)
to obtain records that Mr. Kissenger had removed from the Department of State (“Department”)
to the Library of Congress (“Library”) in violation of the Federal Records Act (“FRA”) and the
Federal Records Disposal Act (“FRDA”). 445 U.S. at 142–47. Because “FOIA did not directly
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provide for relief since the records were in the custody of the Library of Congress, which is not
an ‘agency’ under the Act,” the journalists requested an order directing the Library to return the
records to the Department (an “agency” under FOIA) and directing the Department to then
process their FOIA disclosure requests. Id. at 145. Upon concluding that Mr. Kissenger’s
removal of the records violated the FRA and FRDA, the district court “invoke[d] its equitable
powers ‘to order the return of wrongfully removed agency documents where a statutory retrieval
action appears unlikely.’” Id. The United States Court of Appeals for the Fourth Circuit
affirmed the trial court’s order to return the records without discussion. Id. at 145–45. The
Supreme Court of the United States reversed the Court of Appeals’ order compelling return of
the records, concluding that the court lacked authority to order the return. Id. at 146–150, 158.
In analyzing whether the lower court possessed authority, the Court assumed arguendo that Mr.
Kissinger’s removal of the documents violated the FRA and FRDA. Id. at 148. The Court then
proceeded to consider whether or not the trial court possessed authority to enforce and remedy
violations of the FRA and FRDA. Id. The Court explained that in “seeking the return of the
records to State Department custody,” the journalists were “effectively seek[ing] to enforce the[]
requirements of the Acts.” Id. The Court concluded that the trial court lacked authority because
the FRA and FRDA established that only the Attorney General could bring suit to recover the
records that had been wrongfully removed. Id. In reaching this conclusion, the Court
emphasized that the FRA and FRDA do not confer a private right of action on private parties:
Congress expressly recognized the need for devising adequate statutory safeguards
against the unauthorized removal of agency records, and opted in favor of a system
of administrative standards and enforcement. Thus, regardless of whether Kissinger
has violated the Records and Records Disposal Acts, Congress has not vested federal
courts with jurisdiction to adjudicate that question upon suit by a private party. That
responsibility is vested in the administrative authorities.

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Id. at 149–50 (internal citations and footnotes omitted).
Applying Kissinger to the instant case, the Court concludes HIPAA does not vest this
Court with jurisdiction to impose the remedy OHP seeks. OHP, in seeking return of the
documents at issue, is “effectively seeking to enforce” HIPAA.1 Id. at 148. Like the federal acts
at issue in Kissinger, HIPAA creates neither an express nor an implied cause of action for private
citizens to enforce its terms. Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006) (finding that it
lacked federal subject matter jurisdiction over plaintiff’s claims alleging violations of HIPAA
because HIPAA confers no private cause of action); accord Siegler v. Ohio State University, No.
2:11–cv–170, 2011 WL 1990570, at *8 (S.D. Ohio May 23, 2011); Henry v. Ohio Victims of
Crime Compensation Program, No. 2:07–cv–0052, 2007 WL 682427, at *2 (S.D. Ohio Feb. 28,
2007). Rather, HIPAA expressly limits enforcement of the statute to the Secretary of Health and
Human Services. Acara, 470 F.3d at 571 (citing 42 U.S.C.§§ 1320d-5, d-6); Sneed v. Pan
American Hosp., 370 F. App’x 47, 50 (11th Cir. 2010). Thus, to the extent Plaintiff’s continued
possession of the documents at issue violates HIPAA, the Secretary of Health and Human

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Clearly, OHP is not seeking relief pursuant to Federal Rule of Civil Procedure 65. OHP
seeks permanent, not interim relief. In addition, OHP did not advance any counterclaims against
Plaintiff, let alone claims upon which this Court could ultimately award injunctive relief. See
Westbank Yellow Pages v. BRI, Inc., No. 96–cv–1128, 1996 WL 255912, at *1-2 (E.D. La. May
13, 1996) (citation omitted) (denying the defendants’ request for injunctive relief where the
defendants had not filed any counterclaims, explaining that “[a] preliminary injunction is not an
appropriate vehicle for trying to obtain relief that is not even sought in the underlying action”);
Cf. De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945) (“A preliminary
injunction is . . . appropriate to grant intermediate relief of the same character as that which may
be granted finally,” but is inappropriate where the injunction “deals with a matter lying wholly
outside of the issues in the suit.”); Ball v. Famiglio, 396 F. App’x 836, 838 (3d Cir. 2010)
(denying preliminary injunction where individuals whose conduct movant sought to enjoin were
not named defendants); Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (declining to
award injunctive relief where the relief sought was not of the same character that could be
granted finally); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (same).
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Services, not this Court, is the only party authorized to enforce the Act.2
This Court does, however, possess the inherent authority to issue an order addressing
Plaintiff’s expressed intention to utilize the documents at issue in this case, especially in light of
the fact that she obtained these documents outside of this Court’s discovery process. See e.g.,
C.P. Armour Pharm. Co., 838 F.Supp. 1573, 1578 (S.D. Fla. 1993) (exercising its inherent
authority “to limit the use of documents obtained by means other than that court’s discovery
process”); In re Shell Oil Refinery, 143 F.R.D. 105, 108–09 (E.D. La. 1992) (limiting party’s use
of documents obtained outside of the court’s discovery process “pursuant to the Court’s inherent
authority to control and preserve the integrity of its judicial proceedings”); United States v.
Comco Mngmt., No. SACV 08-0668, 2009 WL 4609595, at *4–5 (C.D. Cal. Dec. 1, 2009)
(ordering Government to return all of the defendants’ privileged documents it had obtained from
a whistleblower pursuant to the court’s “inherent authority to grant defendants appropriate relief
to remedy the Government’s circumvention of the normal discovery process”).
Pursuant to this inherent authority, the Court PRECLUDES Plaintiff from utilizing any
of the documents that she removed from OHP in connection with her investigation of OHP’s
potential violation of professional or clinical standards in the instant action. The Court
concludes that this exercise of inherent authority is warranted given the sensitive and possibly
privileged nature of these documents and their limited relevance to the instant action. Cf. Kapp
v. Jewish Hospital, Inc., No. 1:09–cv–949, 2011 WL 2669457, at *5–6 (S.D. Ohio July 7, 2011)
(finding “non-party patients’ right to confidentiality outweighs the [p]laintiff’s proffered
justification for accessing non-party patient medical records” and that the plaintiff has “other,

2

To be clear, the Court is not opining on whether HIPAA’s Whistleblower Exception
authorized Plaintiff’s initial removal or continued retention of the documents at issue.
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less invasive options to discover whether similarly-situated nurses administered drugs without an
order . . . and were not terminated.”); Hofmann v. Aspen Dental Management, Inc., No.
3:10–cv–37–SEB–WGH, 2011 WL 4625920, at *7 (S.D. Ind. Sept. 29, 2011) (concluding that
the issue of whether the plaintiff was in fact a whistleblower under HIPAA as largely irrelevant
to resolving her retaliation claim because “the relevant question is not whether [the plaintiff’s]
conduct actually violated HIPAA, but merely whether, at the time [the defendant] terminated
her, [it] honestly believed that her conduct violated HIPAA.”). To the extent Plaintiff believes
that these documents are discoverable within this action, she may seek them through this Court’s
discovery process such that OHP would have an opportunity to seek a protective order.
III.
For the reasons set forth above, OHP’s Motion for Return of Confidential Patient
Information is DENIED. (ECF No. 13.) Plaintiff, however, is PRECLUDED from utilizing
any of the documents that she removed from OHP in connection with her investigation of OHP’s
potential violation of professional or clinical standards in the instant action.
IT IS SO ORDERED.

Date: July 27, 2012

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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