229 F. Supp. 3d 1277
S.D. Fla.2017Background
- Two unrelated federal cases raised the same discovery issue: whether plaintiffs can be compelled to sign HIPAA medical authorization forms when they put their physical or mental condition at issue.
- Sherlock (employment discrimination) and Incardone (personal-injury/cruise; multiple plaintiffs alleging physical and PTSD-related injuries) each resisted broad HIPAA authorizations while defendants sought full access to medical records.
- There is no controlling Eleventh Circuit or Supreme Court authority; district courts are split on whether Rule 34/37 or other authority permits compelling signed HIPAA releases.
- Defendants attempted to obtain records via subpoenas; some providers refused production absent a plaintiff-signed HIPAA release.
- The magistrate judge adopted a practical solution: require parties to submit a jointly proposed HIPAA-compliant court order under 45 C.F.R. §164.512(e)(1) (permitting disclosure in response to a court order), allow subpoenas plus that order to obtain records, and impose limits on plaintiffs’ ability to introduce evidence outside the order’s scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a federal court compel a plaintiff to sign a HIPAA authorization? | Courts lack authority to force waiver of HIPAA privacy by compelling signed authorizations. | Courts may compel signatures under Rule 34/37 or inherent discovery power. | Court avoided deciding; held plaintiffs need not sign releases but ordered parties to submit a HIPAA-based court order under 45 C.F.R. §164.512(e)(1). |
| If plaintiffs refuse broad discovery, can defendants obtain records? | Plaintiffs sought to limit scope and selectively produce; resist broad subpoenas. | Defendants argued subpoenas plus court order will secure records and avoid sandbagging. | Court ruled defendants can obtain records via subpoena accompanied by the court HIPAA order; providers should comply. |
| What are consequences if plaintiffs narrow scope of HIPAA order? | Plaintiffs want to restrict topics to protect privacy. | Defendants want access to topics relevant to damages (including potentially prejudicial issues). | Plaintiffs barred from using at trial or for any purpose medical records or expert testimony on topics omitted from the HIPAA order; defendants may move to expand omitted topics. |
| Is a signed authorization for some providers a waiver for others? | Plaintiffs argued limited signings do not waive broader privacy. | Defendants argued partial signings show waiver and justify compulsion. | Court rejected waiver argument; limited signings do not waive privacy for other providers when court order mechanism is available. |
Key Cases Cited
- Klugel v. Clough, 252 F.R.D. 53 (D.D.C. 2008) (Rule 34 cannot be used to compel a party to sign a medical records release)