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Kitchen v. Corizon Health Inc.

United States District Court, W.D. Michigan, Southern Division

November 5, 2017

Michael Andrew Kitchen, # 189265, Plaintiff,
v.
Corizon Health Inc., et al., Defendants.

          OPINION

          PHILLIP J. GREEN United States Magistrate Judge

         This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff is an inmate at the Carson City Correctional Facility. (ECF No. 111). His complaint arises out of conditions of his confinement at the Michigan Reformatory from October 29, 2015, through November 23, 2015, and at the Bellamy Creek Correctional Facility from November 24, 2015, through July 12, 2016. Plaintiff is dissatisfied with the decisions of medical professionals regarding how frequently he can obtain refills of an inhaler that has been prescribed and provided as treatment for his asthma and cardiopulmonary disease (COPD).

         Plaintiff filed this lawsuit on August 29, 2016. The defendants are divided into two groups. The first group of defendants is Corizon Health, Incorporated (Corizon) and its employees Nurse Practitioners Corey Grahn and Andrea Lindhout (collectively referred to as the Corizon defendants). The second group of defendants (collectively referred to as the MDOC defendants) is comprised of employees of the Michigan Department of Corrections: Registered Nurse Lindsey Taylor, Registered Nurse R. Harbaugh, Corrections Officer Burch, Registered Nurse Diana Whitelock, Registered Nurse S. Gregurek, Corrections Officer Nixon, Registered Nurse S. Buskirk, Registered Nurse Kevin Corning, Registered Nurse Joshua Langdon, Michigan Reformatory's Health Unit Manager Bryan Deeren, Registered Nurse and Clinical Administrative Assistant of the Southern Region Health Care Administration Laura Kinder, and Manager of the MDOC's Grievance Section of the Office of Legal Affairs Richard Russell.

         The matter is before the Court on a series of motions: the MDOC defendants' motion for a stay of discovery (ECF No. 61), the motion by the Corizon defendants to compel discovery (ECF No. 66), plaintiff's motion to strike the MDOC defendants' motion for a stay of discovery (ECF No. 71), plaintiff's motion for a protective order (ECF No. 72), plaintiff's motion to strike defendants' brief (ECF No. 77), plaintiff's motion to quash a subpoena, for sanctions, and request for an extension of time to file a motion (ECF No. 80), plaintiff's motion to compel against the Corizon defendants (ECF No. 90), plaintiff's motion to enforce subpoenas and for an extension of time to file a response to the MDOC defendants' motion for summary judgment (ECF No. 95), and a motion by the Corizon defendants for an extension of their deadline for filing a motion for summary judgment (ECF No. 103).

         Upon review, the motion to stay discovery (ECF No. 71), the motion to strike (ECF No. 77), the motion to extend time (ECF No. 80), and the motion to enforce subpoenas and to extend time (ECF No. 95) will be denied. The Corizon defendants' motion to compel (ECF No. 66) will be granted and plaintiff will be ordered to sign the release for the MDOC's records. Other motions (ECF No. 61, 72, 90, 103) will be granted in part and denied in part as specified herein.

         1. MDOC Defendants' Motion for Protective Order

         The MDOC defendants filed a motion for summary judgment based on the affirmative defense provided by 42 U.S.C. § 1997e(a). Under the paragraph 2(c) of the Court's case management order (ECF No. 22, PageID.109), discovery against the MDOC defendants was limited to the issue of exhaustion of administrative remedies. The discovery sought by plaintiff (see ECF No. 62-1, PageID.646, PageID.646-48) was not limited to the issue of exhaustion of administrative remedies on the claims at issue in this lawsuit. The MDOC defendants' motion for a protective order (ECF No. 61) will be granted in part and denied in part. The motion will be granted to the extent that the Court will continue to enforce the case management order's limitation of discovery against the MDOC defendants to the issue of exhaustion of administrative remedies and the time period for conducting such discovery has passed.

         2. Plaintiff's Motions to Strike

         On March 31, 2017, plaintiff filed a motion to strike the MDOC defendants' motion for a protective order (ECF No. 71) and a motion to strike a “[b]rief filed by the MDOC Defendants responding to Plaintiff's motion for a protective order against the Corizon Defendants” (ECF No. 77). Upon review, plaintiff's motions to strike will be denied for multiple reasons. First, the Court has determined that the MDOC defendants are entitled to a protective order.

         Second, the challenged motion and brief are not pleadings under Rule 7(a) and plaintiff has not established grounds for striking those documents under Rule 12(f). See Fed. R. Civ. P. 7(a), 12(f); see also Lucas v. JBS Plainwell, Inc., No. 1:11-cv-302, 2011 WL 5408843, at *1 (W.D. Mich. Nov. 8, 2011).

         Third, plaintiff's argument that the documents “should be stricken from the record because their lawyer has not been given leave of court to make an appearance” (ECF No. 78, PageID.749) is frivolous. Defendants' attorney did not require leave of Court to make an appearance. Defendants can be represented by more than one attorney.

         Fourth, Local Civil Rule 7.1(d) is an attempt to help the Court deal with the proliferation of non-dispositive civil motion practice - a problem that is well-illustrated by this case. Rule 7.1(d) is designed to force the moving party to ascertain whether the motion will be opposed, confer in a good faith effort to resolve the dispute, and to provide the Court with a separately filed certificate in writing “setting forth in detail the efforts of the moving party to comply with the obligation created by this rule.” W.D. Mich. LCivR 7.1(d). It is patent that Rule 7.1(d) was not intended to exacerbate the existing problem by creating opportunities for another yet layer of motions based on assertions that a movant's certification was “false” or that efforts to resolve the matter before filing the motion were not made in good faith. (ECF No.71, PageID.710-12). While a purported deficiency in the movant's certification might warrant some limited discussion in a brief filed in opposition to a motion, it should never spawn a round of motions to strike. Plaintiff's motions to strike will be denied.

         3. The Corizon Defendants' Motion to Compel and Plaintiff's Motion for a Protective Order

         On March 17, 2017, the Corizon defendants filed a motion to compel. (ECF No. 66). It is beyond question that plaintiff placed his medical records and treatment at issue by filing this lawsuit claiming that he received constitutionally inadequate medical care. The Corizon defendants are seeking a Court order compelling plaintiff to sign an authorization for release of the MDOC's records regarding plaintiff for the period between from February 1, 2011 and the present. (Id. at PageID.686).

         On March 31, 2017, plaintiff filed a motion captioned as a “MOTION FOR PROTECTIVE AND/OR QUALIFIED PROTECTIVE ORDER.” (ECF No. 72).Plaintiff concedes that the Corizon defendants are entitled have access to the MDOC's medical records regarding his condition and medical care. (Id. at PageID.731).

         Plaintiff seeks to restrict the Corizon defendants' access to only those records related to his asthma and COPD. Plaintiff would like to inspect the medical records before the MDOC provides them to the Corizon defendants. He would like the Court to prohibit the Corizon defendants from having ex parte communications with medical care providers. He asks the Court to order someone to “redact” his social security number and birth date from any documents released to the Corizon defendants. Plaintiff also desires that the Court make provisions preventing unauthorized disclosures of the medical records, order that any medical records released be destroyed at the end of the litigation, and order that access to the medical records be restricted to attorneys of record. (Id. at PageID.733-38). Upon review, plaintiff's motion for a protective order will granted in part and denied in part. Plaintiff will be ordered to sign the release for the MDOC's medical records, and if he fails to sign the release (ECF No. 66-2, PageID.692) and mail it to the attorney for the Corizon defendants and file proof of service of same with the Court on or before November 24, 2017, a report and recommendation will enter recommending that all plaintiff's claims against the Corizon defendants be dismissed with prejudice.

         Prisoners claiming deliberate indifference to serious medical needs place their medical condition and the medical care that they have received directly at issue and thereby waive whatever privileges or statutory protection the medical records may have previously enjoyed under HIPAA. See Simon v. Cook, 261 F. App=x 873, 886 (6th Cir. 2008) (waiver of federal common law psychotherapist-patient privilege); Maday v. Public Libraries of Saginaw, 480 F.3d 815, 821 n.2 (6th Cir. 2007) (waiver of state-law privilege); Fuller v. Kerr, No. 2:13-cv-13171, 2015 WL 1565367, at *2-3 (E.D. Mich. Apr. 8, 2015) (waiver of federal common law psychotherapist-patient privilege); Romano v. SLS Residential, Inc., 298 F.R.D. 103, 112-15 (S.D.N.Y. 2014) (waiver of HIPAA protections).

         In addition, given the public's constitutionally-based right to know the evidence on which this Court bases a decision on a motion for summary judgment, motions to seal summary judgment exhibits, including medical records, are regularly denied by this Court. See, e.g., McCallum v. Corizon, Inc., No. 1:15-cv-700 (W.D. Mich. Sept. 21, 2016) (Order denying Corizon's motion to seal summary judgment exhibit); Simmons v. Rogers, No. 1:14-cv-1242 (W.D. Mich. March 21, 2016) (same).

         “The Sixth Circuit has pointed out that the presumption of access to court proceedings finds its genesis in the founding principles of this country and a revulsion against secret judicial proceedings, such as those held in the Star Chamber and other prerogative courts.” Martis v. Dish Network, No. 1:13-cv-1106, 2013 WL 6002208, at *1-2 (W.D. Mich. Nov. 12, 2013) (citing Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1177-79 (6th Cir. 1983)). The presumption has roots both in the First Amendment and the common law, and it applies to pleadings, motions, and other documents that bear on the merits of a controversy. Martis, 2013 WL 6002208, at *1. “The parties are privileged to negotiate in secret, but they must litigate in public.” Encana Oil & Gas (USA), Inc. v. Zaremba Family Farms, Inc., No. 1:12-cv-369, 2012 WL 1377598, at *2 (W.D. Mich. Apr. 19, 2012).

         Plaintiff concedes that the Corizon defendants should be permitted access to the MDOC's medical records for the time period that they have requested. (ECF No. 73 at PageID.734). He asks, however, that the Court limit defendants' access to records regarding “(1) the prescription and use of inhalers and medication given to Kitchen to control his asthma and (2) the treatment by physicians and medical providers of Kitchen's asthma or chronic obstructive pulmonary disease from February 1, 2011 to January 1, 2017.” (Id. at PageID.732). Defendants respond that plaintiff placed his medical condition at issue, and that he is not entitled to restrict defendants' access in the manner suggested. (ECF No. 89 at PageID.815-20).

         Plaintiff alleges that he suffered a broad range of injuries and he claims entitlement to extensive damages. Every count that plaintiff lists in his complaint includes allegations that as a result of defendants' actions, plaintiff, “suffered damages including without limitation bodily injury and resulting pain and suffering, disability, mental anguish, and the capacity for the enjoyment of life. The losses described are permanent or continuing in nature and [plaintiff] will suffer such losses in the future.” (ECF No. 1 at ¶¶ 113, 118, 123, 128, 133, 137, 141, PageID.18-25). “Plaintiff does not get to choose which discrete portions of his medical records he permits Defendants to discover.” Sleighter v. Kent County Jail Adm'r, 1:12-cv-703, 2013 WL 5320203, at * 5 (W.D. Mich. Sept. 20, 2013). Defendants are entitled to all the requested MDOC records regarding plaintiff for the period from February 1, 2011, to the present.

         Plaintiff asks that the Court order that he be permitted to inspect the records before the MDOC provides them to the Corizon defendants. (ECF No. 73 at PageID.734-35). Plaintiff has no such right of inspection. Plaintiff invokes the Michigan Medical Records Access Act, Mich. Comp. Laws ' 333.26261, et seq., (ECF No. 73 at PageID.735), but the question of whether he is entitled to access to the MDOC's records under the Michigan statute is simply not an issue in this lawsuit. It is utterly irrelevant to defendants' entitlement to the documents in question.

         In addition, this case is brought under the Court's federal-question jurisdiction. “Pursuant to Rule 501 of the Federal Rules of Evidence, the issue of privilege in federal-question cases is governed by federal law, not state law. This is the rule even where, as here, there are pendent state-law claims asserted as well as federal claims.” Carlson v. Fewins, No. 1:08-cv-991, 2010 WL 11488917, at *2 (W.D. Mich. Apr. 9, 2010) (citing Hancock v. Dodson, 958 F.2d 1367, 1372-73 (6th Cir. 1992)). There is no federal physician-patient privilege. See Hancock v. Dodson, 958 F.2d at 1373; see also Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio 2014) (“It is well-established that, under federal common law, there is no physician-patient privilege.”).

         Plaintiff asks that the Court “prohibit the Corizon Defendants from having ex parte communications with his medical providers.” (ECF No. 73 at PageID.736).

         The Court has “broad discretion” in regulating discovery. Strayhorne v. Caruso, No.11-15216, 2014 WL 916814, at *2 (E.D. Mich. Mar. 10, 2014). The Court, in its discretion, declines to impose the suggested restriction. The Corizon defendants are entitled to speak with Corizon's employees and contractors and others medical care providers regarding the care that plaintiff has received or is receiving. “The HIPAA regulations plainly permit adversaries in litigation to have access to a claimant's medical records that are relevant to the issues in the litigation. Having access to the medical witnesses who may testify at trial serves the same goal of allowing equal access to the evidence, which is essential to the success of the adversary process.” Thomas v. 1156729 Ontario Inc., 979 F.Supp.2d 780, 784 (E.D. Mich. 2013); see also Owusu v. Michigan Dep't of Corr. Pain Mgmt. Comm., No. 16-cv-12490, 2017 WL 3913152, at * 1-2 (E.D. Mich. Sept. 7, 2017) (noting that ex parte communications with health care providers are contemplated by HIPAA and are regularly allowed by federal courts).

         Plaintiff cites 45 C.F.R. § 164.512(e)(v), which states:

(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and
(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.

         Although defendant opposes plaintiff's motion because plaintiff is asking the Court to impose a host of additional restrictions, nothing in defendants' brief suggests that a straightforward qualified protective order sufficient to satisfy the above referenced requirements would be opposed. Only this portion of plaintiff's motion will be granted and the Court's order will contain basic provisions sufficient to satisfy 45 C.F.R. § 164.512(e)(v). The Court is granting this relief to avoid potential further delays in getting the medical records into the hands of the Corizon defendants.[1]

         In addition, to the above referenced provision regarding destruction of records, plaintiff would like the Court to “require the Corizon defendants to send the released medical records, and all copies made of them, to an attorney selected by [plaintiff] or the Court at the end of the litigation, so that the records can be properly destroyed.” (ECF No. 73, PageID.737). HIPPA and its regulations contain no such requirements. There is nothing before the Court suggesting that defendants' attorneys will be unable to properly dispose on any medical records at the conclusion of this lawsuit and all related appeals.

         Plaintiff asks the Court to “order the redaction of his social security number and birth date from any medical records released to the Corizon Defendants.” (ECF No. 73 at PageID.736). Plaintiff is not entitled to have anything redacted from the documents that the MDOC is going to produce. The attorneys already have an obligation to redact portions of the information regarding plaintiff's birth date and social security number from documents filed with the Court. See Fed. R. Civ. P. 5.2(a)(1), (2). There is no need for an order.

         Plaintiff asks the Court to order that the MDOC's medical records should only be “seen by attorneys Ronald W. Chapman, Sr., Carly Van Toomme, Patrick L. Klida, and Adam P. Sadowski.” (ECF No.73 at PageID.737). The Court, in its discretion, declines to impose the suggested restriction because it would improperly ...


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