Untangling the Jurisdiction Web: Compelling Disclosure of Federal VA Medical Records in California State Action
Defending against a personal injury claim requires complete access to a plaintiff’s medical records. Sometimes, however, medical records are difficult to obtain. This is particularly true when a plaintiff has treated at the Veteran’s Administration (VA). As set forth below, VA records are protected from disclosure by federal law. Short of an authorization for release, the only way to obtain VA records is by filing a motion for an order directing production by the VA. Even then, however, the VA can refuse to release the records. When faced with this issue, a defendant should consider filing a motion to compel the plaintiff’s signature on an authorization for the release of the records.
Medical Records are Discoverable in a Personal Injury Lawsuit
California’s discovery act is broad and liberally construed in favor of disclosure. (Colonial Life & Accident Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) The purpose of the act is to provide a “‘simple, convenient, and inexpensive’ means of revealing the truth and exposing false claims.” (American Home Assurance Co. v. Société Commerciale Toutélectric (2003) 104 Cal.App.4th 406, 425, quoting Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 376 [emphasis added].) To that end, Code of Civil Procedure section 2017.010 gives parties the right to discover any matter, not privileged, that is relevant or likely to lead to the discovery of admissible evidence. The trial court is vested with wide discretion in granting or denying discovery. (Emerson Electric Co. v. Super. Ct. (1997) 226 Cal.App.4th 1101, 1107.)
Medical records are protected by the right to privacy. The right to privacy, however, is not absolute. (John B. v. Super. Ct. (2006) 38 Cal.4th 1177, 1198-99.) It may be abridged to accommodate a compelling public interest. (Moskowitz v. Super. Ct. (1980) 137 Cal.App.3d 313, 316 (1980). “One such interest, evidenced by California’s broad discovery statutes, is ‘the historically important state interest in facilitating the ascertainment of truth in connection with legal proceedings.’” (Id. [emphasis added], quoting Britt v. Super. Ct. (1978) 20 Cal.3d 844, 857.) In short, in certain circumstances, a party’s privacy right must give way to the opponent’s right to a fair trial. (John B., 38 Cal.4th 1198-99.)
When information sought is protected by the right to privacy, the court must balance the party’s right to discover relevant facts against the privacy interests of the person seeking to foreclose discovery. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) The party seeking discovery of private information must establish that it is directly relevant to the claims alleged. (Id. at 842.) In a personal injury action, a plaintiff places at issue his past and present physical and mental conditions. All medical records relating to the condition are discoverable. Britt v. Super. Ct. (1978) 20 Cal.3d 844, 862-864.) Records of unrelated conditions are discoverable if the condition is relevant to the issue of proximate cause. Slagle v. Super. Ct. (1989) 211 Cal.App.3d 1309, 1314-1315.)
Federal Law Protects Against Disclosure of VA Records
Under 38 U.S.C. section 5701, VA records are confidential and privileged, and no disclosure of them can be made except as provided. Section 5701 allows for disclosure to the patient. (38 USC § 5701, sub. (b)(1).) It also allows for disclosure in state court proceedings, provided certain procedures are followed. (38 USC § 5701, sub. (b)(2); see also Payette v. Sterle (1962) 202 Cal.App.2d 372, 377-78.) A simple subpoena will not suffice. (Payette, 202 Cal.App.2d at 378.)
38 Code of Federal Regulation 1.511 provides the requisite procedures that must be followed to obtain VA records in a state court proceeding. The Regulation states in relevant part:
(c) Disclosures in response to state or local court process—
(1) State or local court order . . . [W]here the records sought are maintained in a VA Privacy Act system of records, and are retrieved by the name or other personal identifier of a living claimant who is a citizen of the United States or an alien lawfully admitted for permanent residence, a State or local court order is the process necessary for disclosure of such records. Upon receipt of a State or local court order directing disclosure of claimant records, disclosure of such records will be made in accordance with the provisions set forth in paragraph (c)(3) of this section.
As set forth above, the Regulation requires a “state or local court order directing disclosure of claimant records.” (38 C.F.R 1.511(c)(1).) Once a state court order is obtained, the VA’s Regional Counsel then reviews the order and the records to determine whether disclosure is necessary to prevent the “perpetration of fraud or other injustice in the matter in question.” (38 C.F.R. 1.511(c)(3).) The Regional Counsel can refuse to disclose the records or can request additional information regarding a party’s need for the records. (Id.)
Obviously, this procedure is not ideal in a personal injury lawsuit. Not only is it time consuming, but also there is no guarantee that the defendant will receive the records from the VA. An alternative to this process is a motion to compel plaintiff’s signature on an authorization for release of the records.
California Law Permits the Court to Issue an Order Compelling Plaintiff’s Signature on an Authorization
Typically, a personal injury plaintiff will sign an authorization for release of relevant medical records. When, however, a party refuses to sign an authorization, the court can issue an order compelling plaintiff to sign it. (See, e.g., Miranda v. 21st Century Insurance Co. (2004) 117 Cal.App.4th 913, 929-30 [affirming dismissal of action for failure to comply with court order compelling Plaintiff to sign authorization and release of medical records]; accord Nuskey v. Lambright (D.D.C. 2008) 251 F.R.D. 3, 8 [noting that courts “regularly order Plaintiffs to sign authorizations for the release of medical information from health care providers where, as here, those records are relevant to the Plaintiff’s claims”]; Roberson v. Bair (D.D.C.2007) 242 F.R.D. 130, 136; Brown v. Eli Lilly and Co. (D.Neb. 1988) 131 F.R.D. 176, 178; Lammers v. Conrad (E.D.Wis.1985), 601 F.Supp. 1543, 1548.) Indeed, courts in a variety of settings have compelled parties to consent to a third party’s disclosure of material where such consent was a prerequisite to its production. (O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446 [citing Miranda]; Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1112; Doe v. United States (1988) 487 U.S. 201 [order did not violate privilege against self-incrimination where it directed subject of grand jury investigation to consent to disclosure of foreign bank records on pain of contempt]; In re Grand Jury Proceedings, Yanagihara Grand Jury, Impanelled June 13, 1988 (C.D.Cal.1989) 709 F.Supp. 192, affd., In re Grand Jury Proceedings (9th Cir.1989) 873 F.2d 238 [witness directed to appear before grand jury and sign consent to disclosure of Swiss bank records].)
Miranda is on point. There, the defendant asked plaintiff to sign authorizations for the release of her medical records, so it could evaluate her injuries. (117 Cal.App.4th at 917-18.) Plaintiff refused, so defendant filed a motion to compel. (Id. at 918.) The trial court granted the motion and issued an order compelling the plaintiff to sign the authorizations. (Id. at 919.) After the plaintiff continued to refuse to sign, the defendant moved for and was granted terminating sanctions. (Id.) On appeal, the court found substantial evidence supported the dismissal because the plaintiff had rebuffed “[r]epeated attempts to obtain voluntary cooperation,” and had “flatly refused to obey a court order.” (Id. at p. 929.)
When a personal injury plaintiff refuses to sign an authorization for release of VA medical records, consider filing a motion to compel his or her signature. Filing such a motion alleviates the need to comply with the Federal Regulations governing release of VA records, and if granted, guarantees the production of the records.
ABOUT THE AUTHOR: Tracey Angelopoulos specializes in civil litigation in the areas of personal injury, professional liability, and general liability. Contact Tracey at 858.459.4400 or email@example.com.