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Kitchen v. Corizon Health, Inc.

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

November 10, 2017

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




         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. 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.

         The 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).

         1. Motion for an Extension of Time

         The 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.

         2. Motion for a Protective Order

         On 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).

         On 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.”[1] (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).

         Plaintiff 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, [2] but decline to enter one on the terms that plaintiff seeks.” (ECF No. 135 at PageID.1421).

         Plaintiff 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.”[3] (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.

         Plaintiff 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.

         Plaintiff 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 camera review.

         Plaintiff 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).

         Plaintiff 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 suggested restriction.

         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. 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.

         The 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.

         Plaintiff's motion for a protective order will be granted in part and denied in part as indicated herein.

         3. Mot ...

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