Employment Law Daily Employee who provided signed release of medical records still must produce records in discovery
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Friday, October 26, 2018

Employee who provided signed release of medical records still must produce records in discovery

By Ronald Miller, J.D.

The Fifth Circuit rejected an employee’s contention that a party who signs an authorization for release of protected health information is completely discharged from the obligation of producing records controlled by a healthcare provider. In this case, the appeals court had previously reversed a district court’s denial of relief to the employee on his USERRA claim. However, on remand, the district court found that the employee and his wife intentionally gave false testimony that disadvantaged the employer, and so granted the employer’s motion for relief from the appeals court judgment. In affirming the district court’s grant of a Rule 60(b) motion, the Fifth Circuit concluded that a moving party does not have to obtain leave of a higher court before a lower court could disturb its judgment. Thus, contrary to the employee’s contention, the district court had jurisdiction to grant relief to the employer (Hernandez v. Results Staffing, Inc., October 24, 2018, Smith, J.).

USERRA claim. The employer provides unskilled day laborers to third parties. Beginning in early 2013, it employed the employee, an Army reservist. After attending a weekend military session from July 12-14, the employee failed to appear for work on the following Monday, July 15, but instead visited a local emergency room complaining of a headache and lower back pain. The employer disciplined the employee for violating its “no call/no show” policy, which requires an employee to call in four hours before a scheduled start time if they are unable to report to work. The employee sued alleging that the employer violated USERRA.

Medical records. The employer served the employee with two requests for production concerning medical records from his visit to the emergency room. Although the employee objected to the request, he nonetheless produced a one-page doctor’s note in which the attending physician wrote that the employee was under his care and would be able to work the next day. Neither the employee nor his counsel gave any indication that additional medical records existed. The employer requested authorization for release of the employee’s records but never used it. The employee’s counsel received copies of the employee’s July 15, 2013, medical records in May 2015, and attempted to fax them to the employer’s counsel. The fax allegedly failed to transmit.

Evidence withheld. Following a non-jury trial in May 2015, the district court denied the employee any relief on his USERRA claim. The Fifth Circuit reversed, rendering judgment in his favor, and remanding the case to the district court to determine his damages. On remand, the employer discovered that the employee and his wife had given false testimony at trial concerning his service-related back condition and his reason for going to the emergency room. Additionally, the employee and his counsel had in their possession in advance of the trial hospital records which should have been disclosed to the employer before the trial that showed the true reason for his trip to the emergency room.

Motion for relief from judgment. After that discovery, the employer filed a Rule 60(b) motion for relief from judgment on grounds that the emergency room records demonstrated that the primary reason for his visit was a headache (not a back injury, aggravated by his military service). In opposition, the employee argued that the district court lacked jurisdiction to consider the motion, contending that the employer failed to exercise due diligence in obtaining the records, and counsel’s “failure to disclose was inadvertent.”

Concluding that the employee’s actions placed the employer at an unfair disadvantage, the district court granted the employer’s motion. However, the district court also determined that there was “substantial ground for difference of opinion” concerning whether providing the signed authorization for release of protected health information was sufficient to satisfy the employee’s ongoing discovery obligations.

District court jurisdiction to grant relief from judgment. The employee appealed the interlocutory order granting the employer’s Rule 60(b) motion for relief from the Fifth Circuit’s prior judgment. On appeal, the employee alleged that the district court lacked jurisdiction to grant relief per Rule 60(b)(3) because it effectively set aside the judgment of the appeals court. Under the facts and circumstances of this case, the appeals court disagreed.

In Standard Oil Co. of California v. United States, the Supreme Court held that a district court may entertain a Rule 60(b) motion without first obtaining leave of the appeals court. Because Standard Oil did not explicitly state whether its ruling was limited to cases in which the court of appeals affirms, the employee asserted that where the appeals court reverses, the district court is not permitted to entertain a Rule 60(b) motion unless “the court of appeals recalls its mandate.”

The employee’s theory failed for two reasons. First, he had cited Hazel-Atlas Glass Co. v. Hartford-Empire Co., a previous line of precedent in which the Supreme Court appeared to require the moving party to obtain leave of the higher court before a lower court could disturb its judgment. However, Standard Oil overruled that precedent. Second, the Fifth Circuit has not—at least since Standard Oil—required a party to obtain its leave before a district court may entertain a Rule 60(b) motion. Accordingly, under Standard Oil the district court had jurisdiction to consider the employer’s motion for relief.

Discovery obligations. Next, the Fifth Circuit disagreed with the employee’s contention that a party who signs an authorization for release of protected health information is completely discharged from the obligation of producing records controlled by a healthcare provider. Under the employee’s theory, he had no further obligation to produce or permit inspection of his medical records because they were in the hands of a third party.

The appeals court determined that it did not need to reach the more difficult question of whether the signing of an authorization for release of protected health information was sufficiently responsive to a Rule 34 request for production, because once the employee’s counsel obtained physical possession of the records, he had a continuing obligation under Rule 26(e) to disclose them to the employer. By declining to do that, the employee failed to meet his obligations under the federal rules, which includes a duty to supplement prior disclosures “in a timely manner” if they are incomplete and “if additional . . . information has not otherwise been made known to the other parties during the discovery process or in writing.”

In this instance, the employee’s disclosure of the initial one-page letter was an incomplete response to at least two employer requests for production of the emergency room records. Neither the employee nor his counsel gave any further indication that additional medical records from that day existed. Additionally, the employee failed to provide the employer with an authorization as part of his discovery response. The employer got that authorization only when it approached the employee to sign a release.

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