United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY JUDGE.
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
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. 150). This lawsuit
arises out of conditions of his confinement between May 21
and November 3, 2015, at the Michigan Reformatory (RMI).
During this period, plaintiff developed shingles, and he
believes that the medical care he received was inadequate.
matter is before the Court on a series of motions by
plaintiff and the two defendants Corizon Health, Inc., and
Nurse Practitioner Corey Grahn (collectively referred to as
the Corizon defendants): plaintiff's motion for a
protective order (ECF No. 120), plaintiff's motion
requesting a “partial delay” of the Court's
ruling on the Corizon defendants' dispositive motion
pending discovery or alternatively for the Court to take
judicial notice of facts and waive compliance with W.D. Mich.
LCivR 7.1(d) (ECF No. 123), plaintiff's motion to compel
(ECF No. 125), the Corizon defendants' third motion for a
teleconference (ECF No. 130), the Corizon defendants'
motion for a brief extension of time to file responses to
plaintiff's motions because the attorney responsible for
drafting the responses was ill (ECF No. 131), the Corizon
defendants' motion for leave to file surreply briefs (ECF
No. 143), and plaintiff's motion regarding service on
defendants Doyle and Schultz (ECF No. 145).
Motion for an Extension of Time
Court finds attorney illness provides good cause to grant the
Corizon defendants' motion for a brief extension of time
to file their responses to plaintiff's motions.
Defendants' motion (ECF No. 131) will be granted.
Defendants' responses (ECF No. 134-37) are deemed timely.
Motion for a Protective Order
April 10, 2017, plaintiff filed a motion requesting a
protective order regarding the Corizon defendants' access
to the MDOC's records regarding the medical care that
plaintiff has received. (ECF No. 120). Defendants have filed
their response. (ECF No. 135).
August 11, 2016, the Corizon defendants served a request for
production of documents on plaintiff, which included a
medical authorization to obtain copies of the MDOC's
records regarding plaintiff's medical care. (ECF No.
135-1, PageID.1431-33). Defendants requested a release of
medical records from April 1, 2009, to the present.
(Id. at PageID.1433). Plaintiff responded with a
letter dated August 30, 2016, indicating that he objected to
the breadth of defendants' request, but he expressed a
belief that the parties could “work something out
without the intervention of the court.” (ECF No. 135-2
at PageID.1434). Defendants represent to the Court that, on
“September 9, 2016, the Corizon Defendants responded.
They declined a personal meeting at that time, but provided a
new medical authorization limiting the scope of their request
in a good faith attempt to resolve any perceived issues with
the prior authorization.” (ECF No. 135 at PageID.1424). The
new medical authorization form limited the scope of
defendants' request to records from January 1, 2012. (ECF
No. 79-3, PageID.815).
Aconcedes that the Corizon Defendants are entitled to have
access to his medical records, ” but he believes that
the extent of access that defendants requested is
Aexcessive.” (ECF No. 121 at PageID.1292). The Corizon
defendants Ado not oppose entering a protective order under
HIPAA,  but decline to enter one on the terms that
plaintiff seeks.” (ECF No. 135 at PageID.1421).
asks that the Court limit defendants' access to medical
records to the period from “May 22, 2015 to January 31,
2016.” (ECF No. 121 at PageID.1294). Further, plaintiff
asks that defendants' access also be further narrowed to
types of medical problems indicated in his complaint related
to damages. (Id. at PageID.1294-95). Defendants
respond that their request for records beginning on January
1, 2012, is reasonable and necessary given the breadth of
plaintiff's claims for damages and the need to review
plaintiff's medical record leading up to his 2015
shingles infection to “determine whether [p]laintiff
had any pre-existing conditions that factor into his alleged
damages.” (ECF No. 135, PageID.1426). Upon review,
the Court finds that the parties have not presented
compelling arguments or evidence in favor of the starting
points that they suggest on either side of a range of
approximately 40 months. In the absence of any agreement, and
limited to the specific facts of this case, the Court finds
that an approximate midpoint splitting the difference is
reasonable and proportional to the needs of the case.
See Fed. R. Civ. P. 26(b)(1). Accordingly, plaintiff
will be ordered to sign the release (ECF No. 79-3,
PageID.815) granting the Corizon defendants access to the
requested MDOC records regarding plaintiff for the period
from September 1, 2013, to the present.
alleges that he suffered a broad range of injuries and he
claims entitlement to extensive damages. The Court will not
limit defendants' access to only those medical records
that plaintiff deems relevant. (ECF No. 121 at
PageID.1294-95). “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 records regarding plaintiff from September 1,
2013, to the present.
asks the Court to order that he be permitted to inspect the
medical records before the MDOC provides them to the Corizon
defendants, or alternatively, that the Court conduct an
in camera review “in order to make sure that
any claim of privacy to that information is a legitimate
exercise of privilege.” (ECF No. 121 at PageID.1295).
Plaintiff has no such right of inspection. Plaintiff invokes
the Michigan Medical Records Access Act, Mich. Comp. Laws
' 333.26261, et seq., (ECF No. 121 at
PageID.1295), 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
[C]ourt'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.”). The Court declines
plaintiff suggestion that the Court conduct an in
asks that the Court “prohibit the Corizon Defendants
from having ex parte communications with his medical
providers.” (ECF No. 121 at PageID.1295). 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).
asks the Court to order that the Court restrict access to the
MDOC's medical records to “attorney Ronald W.
Chapman and the intern or assistant handling this case,
Melissa Wright.” (ECF No. 121 at PageID.1297-98).
Again, the Court, in its discretion, declines to impose the
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. 121 at
PageID.1297). 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.
Corizon defendants do not object to a protective order
including a provision for destruction of documents after the
end of this lawsuit and related appeals. They do not object
to a provision regarding limiting disclosures to those
necessary for the purposes of this litigation. (ECF No. 135
at PageID.1428). The Court will be entering an order
including such provisions.
motion for a protective order will be granted in part and
denied in part as indicated herein.