IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND

MICHAEL GLENN-
Plaintiff

v

STEVEN KENNEDY, et al. -
Defendants,

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         CASE
NO. 24-C-04-008432 MT
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PLAINTIFF’S OPPOSITION TO DEFENDANT HUDSON SCENIC STUDIOS, INC.’S MOTION TO COMPEL PLAINTIFF TO EXECUTE MEDICAL RECORDS RELEASES

Plaintiff, Michael Glenn, by and through his attorneys, Laura G. Zois, John B. Bratt and Miller & Zois, LLC, hereby files Plaintiff’s Opposition to Defendant Hudson Scenic Studios, Inc.’s Motion to Compel Plaintiff to Execute Medical Records Releases.  There are several reasons why Hudson’s Motion should be denied.

First, Hudson Scenic Studios, Inc. (hereinafter “Hudson”) is improperly attempting to compel Plaintiff to engage in a method of discovery that is not permitted under the Maryland Rules and which is not subject to a motion to compel.  Second, Hudson’s request violates the Maryland medical records confidentiality law.  Third, the releases Hudson proposes are overbroad, seek irrelevant material, and violate Plaintiff’s right to privacy.  Fourth, Hudson’s Motion is premature.  Its subpoenas were facially defective and it has failed to identify a single provider who has failed to produce records because of a lack of a signed authorization.  Finally, Hudson is seeking the wrong remedy.  It should serve legally sufficient subpoenas and then use the Court’s existing procedures to ensure compliance with those subpoenas.  For each of these reasons, Hudson’s Motion should be denied.

INTRODUCTION

Michael Glenn was catastrophically injured on September 5, 2005.  He was working as a laborer, breaking down the local set of the stage production The Lion King after its run at the Hippodrome Theater in Baltimore, Maryland.  He was injured when a large wheeled box known as a “set cart” fell on him.  Plaintiff alleges severe and permanent injuries to his head, lungs, ribs, jaw, and left ankle. 

Hudson is now attempting to persuade this Court to enter an Order that will invade Mr. Glenn’s privacy and circumvent the protections afforded  to him under Maryland law.  Hudson is asking this Court to order Plaintiff to give it unfettered access to any medical records, pertaining to any treatment, of any kind, at any time in the Plaintiff’s life.  Instead of using the established procedures for subpoenaing protected health records, Hudson asks this Court to relieve it of its obligation to follow those procedures and compel Plaintiff to assist Hudson to allow access to his confidential records.

ARGUMENT

I.          Hudson is requesting a method of discovery not permitted under the Maryland Rules            Maryland Rule 2-401 lists the methods of discovery permitted by the Courts.  The rule states:  “Parties may obtain discovery by one or more of the following methods: (1) depositions upon oral examination or written questions, (2) written interrogatories, (3) production or inspection of documents or other tangible things or permission to enter upon land or other property, (4) mental or physical examinations, and (5) requests for admission of facts and genuineness of documents.”  Nowhere does the rule indicate that it is permissible to force a litigant to execute an authorization allowing access to confidential health records protected by law, or that it is permissible to require a litigant to create and endorse a document for use by a party opponent.  A request for an order requiring a party to execute a medical release is not a proper subject of a motion to compel.

Maryland Rule 2-432 details the types of discovery which may properly be the subject of a motion to compel.  The rule only permits the filing of a motion to compel relating to depositions, answers to interrogatories, and responses to requests for production of documents.  Md. Rule 2-432.  Hudson is not asking Plaintiff to produce documents that are in Plaintiff’s “possession, custody or control,” but is asking Plaintiff to create and endorse a document intended for use in circumventing the Maryland Rules.   Since Hudson  is requesting a method of discovery not permitted by the Maryland Rules, which may not properly be the subject of a motion to compel, this Court should summarily deny Hudson’s Motion. (1)

II.        Hudson’s request violates Maryland’s Confidentiality of Medical Records Act.
            Hudson is asking this Court to order Plaintiff to execute releases, ostensibly because it thinks it might be unable to obtain certain records regarding Plaintiff.  However, Maryland law provides Hudson with the proper means to obtain the very same records.  Hudson is attempting to avoid compliance with Md. Health General Code Ann. §4-306(b)(6) and 4-307(k)(v).  Those statutes do not allow for a party to be compelled to execute an authorization.  Those sections provide a means for mandatory disclosure of Plaintiff’s health care records without Plaintiff’s authorization.

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(1)  Plaintiff has produced all relevant medical records and bills related to injuries sustained in the accident of September 5, 2005.  See Exhibit “A”.

“We are mindful that the General Assembly intended the Act ‘to protect the privacy of patients and to maintain the confidentiality of medical records, while establishing clear and
certain rules for disclosure of those records.’”  Dorsey v. State, No. 2993 September Term 2007

(Md.App.) slip op. at 33.  The General Assembly intended that “[i]n order to protect the privacy of a patient or recipient, that disclosure of information from a medical record without the authorization of a person in interest be limited to the information that is relevant to the purpose for which disclosure is sought…”  Id.   The General Assembly has devoted an entire title of the Health-General Code to the confidentiality of medical records and the circumstances under which they may be disclosed pursuant to compulsory process and without an authorization. These statutes should be honored and upheld.

Confidential medical records are afforded great protection under Maryland law.  “A health care provider or other person, including an officer or employee of a governmental unit” who discloses a confidential record in violation of the law may be subject to a $50,000.00 fine and/or imprisonment for up to one year, in addition to being liable for any actual damages incurred.  Md. Health-General Code Ann. § 4-309 (e) & (f).

Hudson is asking this Court to assist it in circumventing the provisions of Maryland law that protect the confidentiality of Plaintiff’s medical records.   Hudson has not provided any valid explanation as to why this extreme measure is necessary.  Hudson has subpoenaed the records, so its remedy for a health care provider’s failure to comply with the Court’s compulsory process is to use the Court’s existing procedures regarding the enforcement of subpoenas.  Hudson’s argument that providers are reluctant to produce the records is premature.  Even if true, it is merely evidence of the high degree of confidentiality such records are afforded in the medical community- and that the state and federal statutes protecting that confidentiality are working.

III.       The authorizations Hudson requests are overbroad, seek irrelevant material, and violate Plaintiff’s right to privacy.

The most curious feature of Hudson’s Motion is that it has failed to attach as exhibits the medical releases it is asking this Court to order Plaintiff to sign.  Exhibits 1-15.  The releases are intrusive, over broad, and request irrelevant material unrelated to Plaintiff’s claims in this case.  Hudson contends that because Plaintiff simply refused to sign the requested releases, that he does not take issue with the wording of those releases.  (2)  This is incorrect.

The release itself states that it seeks records pertaining to “any and all” dates of treatment, and authorizes the production of “any and all information, records, documents including but not limited to reports, clinical abstracts, histories, charts, bedside notes of every kind and description, x-ray films, CT scan films, MRI films, or other diagnostic films…”  Exhibits 1-15.  This proposed medical records authorization far exceeds the scope of permissible discovery under the Maryland Rules and violates HIPPA regulations.  Hudson’s proposed “HIPAA Stipulation” states that Hudson seeks “any and all of [Plaintiff's] medical records produced, generated, and reviewed by any and all of his health care providers over the course of his life…”  Exhibit 16.

A party may obtain discovery only “if the matter sought is relevant to the subject matter involved in the action.”  Md. Rule 2-402.  Hudson assumes that any medical treatment, of any

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(2) Plaintiff contends he is under no obligation to sign the releases, or to engage in any discussion regarding the proposed releases because the releases are not “discovery” under Md. Rule 2-401(a) and because this is not “[a] dispute pertaining to discovery” under Md. Rule 2-341. Plaintiff would have been within his rights to simply ignore Hudson’s request that he sign the authorizations.
kind, at any time, over the course of Plaintiff’s life is relevant to this case.  Hudson has even
specifically requested records of treatment from as far back as the 1970′s.  Exhibit 17.
It is interesting to note, that Hudson is, objecting to all of Plaintiff’s Requests for Production that are not limited to a specific time period.  Hudson concedes that any request for material not generated within three years prior to the occurrence is overbroad, irrelevant, and burdensome.  Hudson’s Response to Request for Production of Documents states that:

The Defendant objects to the Request(s) for Production of Documents insofar as it seeks information with respect to an unlimited period of time, except where otherwise indicated, on the grounds that such information is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence, and that it would be unduly burdensome, oppressive, and costly to search for, collect and produce information with respect to any period prior or subsequent thereto. The request(s) as framed seek the production of documents over a period of time unlimited in duration.  The phrase “the relevant period” will refer to a period of three (3) years prior to the date of the occurrence as alleged in the Complaint.  Exhibit 18.

Hudson cannot seriously contend that records of Plaintiff’s medical treatment from thirty-nine (1970) or fifteen (1994) years ago are relevant to this action and maintain its position that any records within three years of the accident are relevant for its purposes.  Plaintiff agrees with Hudson that a discovery request unlimited in time is over broad as a matter of law.  Any release should be narrowly tailored to apply to the body parts at issue in this case, and should be limited to the three years prior to the occurrence.  As Hudson admits, anything more would be over broad.
Although the rules of court provide a mechanism for Hudson to force compliance with the subpoenas it has issued, in the spirit of cooperation and efficiency, Plaintiff is willing to execute a release as described above for the providers that are out of the State or the Country.

IV.       Hudson’s Motion is premature- it has not identified a single medical provider who has failed to comply with its subpoenas.

Despite its Md. Rule 2-341 certificate, the fact that Hudson has filed this motion at all exhibits its lack of good faith.  Hudson has served nine facially defective subpoenas and four subpoenas where the date of requested production has not yet been reached.  Hudson’s Motion lacks a good faith basis because the medical providers had no duty to comply with the facially defective subpoenas, and because Hudson has no idea whether the properly issued subpoenas it served will result in production of the requested material on dates in the future.

On March 5, 2009, Hudson first requested that Plaintiff execute authorizations for his medical records directed to the following providers:
University of Maryland Medical Center
Kernan Hospital
Advanced Radiology

Inna Gendelsman, M.D. (Maryland FamilyCare)
Marilyn A. Godfrey, RPY (An Invitation to Heal)
Stephen H. Gamerman, DDS, PA
Michael K. Spodak, M.D., P.A.
Edward R. Cohen, M.D.

Dominick Lanzo, M.D.
Drs. Mady & Mules Physical Therapy
Princess Margaret Hospital
Baptist Hospital

Dr. Robert Gibson, Jr.
Exhibits 1-13.  Hudson also requested that Plaintiff execute two authorizations in blank, which were not directed to any specific provider.  Exhibits 14 & 15.
Also on March 5, 2009 Hudson served subpoenas duces tecum and notices of medical records depositions on eight entities:

Maryland Worker’s Compensation Commission

University of MD Medical Center
Kernan Hospital
Marilyn A. Godfrey Meile, RPT
Stephen H. Gamerman, DDS, PA
Michael K. Spodak, MD, PA
Edward R. Cohen, MD

Inna Gendelsman
Advanced Radiology

Exhibit 19.  These Notices demanded production of the requested documents before March 30, 2009.
There was no duty to respond to these subpoenas at all, because they violate Md. Rule 2-412 (c).  Where a non-party deponent is required by subpoena to produce documents at a deposition, “the subpoena shall be served at least 30 days before the date of the deposition.”  Md. Rule 2-412 (c).  Here, Hudson failed to serve the subpoenas at least thirty days before the date of the deposition, so its subpoenas have no legal effect.  If Hudson is having trouble obtaining the requested documents, it may be because the subpoenas it served were facially deficient and violated Maryland law.

On March 25, 2009, Hudson served an Amended notice of Records Deposition on Michael K. Spodak, M.D. requiring production on April 23, 2009.  This Amended Notice of Records Deposition was also facially deficient, allowing only 29 days for production of the requested documents, in violation of Md. Rule 2-412 (c) and Md. Health General Code Ann. §4-307.  Exhibit 20.
On March 24, 2009 Hudson served Notices of Depositions Duces Tecum on D. Allan Lanzo, MD, St. Joseph’s Medical Center, Drs. Mady & Mules Physical Therapy, and Sidney S. Mir, MD, FACS, P.A.  These Notices demanded production of the requested documents on April 24, 2009, and therefore were in compliance with Md. Rule 2-412 (c) and Md. Health General Code Ann. §4-307.  Exhibit 21.  Because the date of the requested production has not yet been reached, Hudson’s request for authorizations directed to any of these providers is premature.

Hudson is asking the Court to order Plaintiff to execute releases for the production of his medical records, but Hudson has made no showing at all that it was unable to obtain those records by subpoena.  Hudson began requesting the medical releases at issue on March 5, 2009- the same day the first set of facially defective subpoenas were served- without knowing whether the releases would even be needed or if the subpoenas would be complied with.  Exhibit 22. Moreover, at each step, Plaintiff’s counsel has indicated a willingness to revisit the issue if Hudson was unable to obtain the requested material through proper channels.  Exhibit 23.  Plaintiff’s counsel’s correspondence to Hudson specifically stated “should you have any difficulty in acquiring any records, please let me know and I will revisit the issue.”  Id.   Hudson has never identified to Plaintiff or to this Court any specific record it has been unable to obtain.  Because Hudson has failed to show any reason why there is good cause to grant its Motion, its request should be denied.

V.        Hudson is seeking the wrong remedy- it should be moving to compel compliance with properly issued subpoenas.

Md. Rule 2-432 provides the proper framework for Hudson to force production of the records it seeks.  In the event a health care provider has been properly served with a subpoena seeking discovery of documents, and no response is filed, Hudson should move for an order compelling production.  Md. Rule 2-432 (b).  “Under Md. Rule 2-432 (b) a discovering party …may move for an order compelling discovery if… a non-party deponent fails to produce tangible evidence without having filed written objection under Rule 2-510 (f).”  Araiza v. Roskowski-Droneburg, 341 Md. 314, 319, 670 A.2d 466, 468 (1996)(Rodowsky, J.).

If Hudson obtains an order compelling the providers to produce the requested documents, and the production is still not made, Hudson may seek an order holding any non-complying entity in contempt.  Md. Rule 2-433 (c).  If this is insufficient to secure production, the entities refusing production are subject to body attachment or a fine for non-compliance.  Md. Rule 2-510 (j).
This is the same procedure used in Maryland’s federal courts:

“      Accordingly, the Court holds that where counsel subpoenas documents from a non-party, especially a health care provider, and the documents are not forthcoming on the appointed date, counsel must engage in a good faith effort to secure the non-party’s compliance before filing a motion to compel and must certify to the effort made as part of the motion to compel.”  Boukadoum v. Hubanks, 239 F.R.D. 427 (D.Md. 2006)(Messitte, J.).

Hudson has failed to identify any specific good faith attempt it has made to obtain production of the requested documents through proper channels.   Hudson is trying to find a way to avoid using the subpoena enforcement procedures supplied by the Maryland Rules.  Plaintiff is under no obligation to assist Hudson in defending this case by executing authorizations for the release of his records.

If Plaintiff sought documents by subpoena from a non-party regarding Hudson’s purchase of the components of the set cart at issue in this case, and the third party refused to produce them, would the Court order Hudson to execute an authorization for production of that material?  The answer, of course, is no.  Plaintiff would need to file a motion to compel the non-party to comply with the subpoena.  This Court should make Hudson and its counsel follow the Maryland Rules in the same manner as any other litigant.

CONCLUSION

This Motion should be denied.  First, Hudson is improperly attempting to compel Plaintiff to engage in a method of discovery that is not permitted under the Maryland Rules and which is not subject to a motion to compel.  Second, Hudson’s request violates the Maryland medical records confidentiality law.  Third, the releases Hudson proposes are overbroad, seek irrelevant material, and violate Plaintiff’s right to privacy.  Fourth, Hudson’s Motion is premature and lacks good cause because it is premised on a failure to comply with defective subpoenas or subpoenas where the date of production has not yet been reached.  Finally, Hudson is seeking the wrong remedy.  It should serve legally sufficient subpoenas and then use the Court’s existing procedures to ensure compliance with those subpoenas.  For each of these reasons, Hudson’s Motion should be denied.

 

Respectfully submitted,
MILLER & ZOIS, LLC

                                                                       
Laura G. Zois

Empire Towers, Suite 1001
7310 Ritchie Highway
Glen Burnie, Maryland   21061
(410) 553-6000
(410) 760-8922 (facsimile)

Attorneys for Plaintiff



Certificate of Service

I, Laura G. Zois, hereby certify that I sent a copy of Plaintiff’s foregoing Opposition to Defendant Hudson Scenic Studios, Inc.’s Motion to Compel Plaintiff to Execute Medical Records Releases via U.S. first class mail, postage prepaid, this ___ day of April, 2009 to:

Kathleen M. Bustraan, Esquire
Lord & Whip
Charles Center South
36 South Charles Street, 10th Floor
Baltimore, MD   21201-3020

Attorney for Defendants The Walt Disney Company, Disney Theatrical Productions, Ltd., Buena Vista Theatrical Group, Ltd., Disney on Broadway and Michael T. Carey, III
Rodger O. Robertson, Esquire
The Law Offices of Joseph M. Jagielski
The Wachovia Building, Suite 1250
7 St. Paul Street
Baltimore, MD 21202

Attorney for Defendant Hippodrome Foundation, Inc. and
Hippodrome Performing Arts Center, LLC
Albert B. Randall, Jr., Esquire
Franklin & Prokopik, P.C.
The B&O Building

2 North Charles Street, Suite 600
Baltimore, MD   21201-3723
Attorney for Defendants Theatre Management Group, Inc., Theatre Management Group, Maryland, LLC and Clear Channel Broadcasting, Inc.
Brian E. Hoffman, Esquire
Saunders & Schmieler, P.C.

8737 Colesville Road, Suite L-201
Silver Spring, MD   20910
Attorney for Defendant Hudson Scenic Studio, Inc.

                                                                       
Laura G. Zois