The U.S. District Court for the Southern District of Ohio found the confidentiality rights of patients outweighed a plaintiff’s need to take discovery of patient medical records in Kapp v. Jewish Hospital, Inc. Plaintiff, a former nurse, brought suit in the federal court in Ohio, alleging she was terminated in violation of federal employment discrimination laws. Specifically, plaintiff alleged defendant had alternative motives for plaintiff’s termination, including plaintiff’s age, perceived disability, and plaintiff’s request for FMLA leave. To establish her case, plaintiff sought to ascertain through the discovery process, whether other similarly situated nurses, were treated in a like manner. To do so, plaintiff filed a motion to compel seeking access to non-party patient records in an attempt to discern if other nurses participated in essentially the same conduct for which defendant terminated plaintiff, but were not themselves terminated. The Magistrate Judge denied plaintiff’s motion to compel and held that Ohio's strict physician-patient privilege law applied to prevent production of the records. The plaintiff objected to the Magistrate Judge’s Order, and those objections were heard by the District Court Judge. The District Court Judge held that “[a]lthough state privilege law does not control…there are abundant and adequate federal principals that protect patient confidentiality.” The Court went on to state,
the non-party patients’ right to confidentiality outweighs the plaintiff’s proffered justification for accessing the non-party patient medical records.
The Court went on to say that the Health Insurance Portability and Accountability Act expresses a general federal policy favoring patients' right to confidentiality and HIPAA's Privacy Rule grants federal protections for patients' personal health information held by covered entities and gives patients rights regarding that information. In this case, the plaintiff had other, less-intrusive options for discovering whether the hospital treated similarly situated nurses differently, including, for example, narrowing the scope of the request by deposing other nurses who had worked with the physician in question, the hospital's human resources personnel, or other nurse supervisors.
The broad discovery sought by plaintiff in this matter is not an uncommon approach taken by the plaintiff’s bar in an effort to prove the merits of their client’s claims. Employers, especially those in the healthcare industry, must be aware of opinions like Kapp in their efforts to limit plaintiff’s unfounded discovery requests and to protect their patients’ privacy.