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BEARD v. CITY OF CHICAGO

January 7, 2005.

LISA M. BEARD, Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, an African-American female who suffers from major depression, was employed as a paramedic for the City of Chicago Fire Department (the "Department") from April 1, 1993 until her termination on November 14, 2002. Ms. Beard has filed this federal-question lawsuit asserting discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; race discrimination in violation of Title VII, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981; gender discrimination in violation of Title VII; and race, color and gender discrimination in violation of 42 U.S.C. § 1983.

As part of discovery in this case, plaintiff has sought production of documents related to "lay ups" (that is, leaves of absences) taken by other paramedics employed by the Department for psychological or substance abuse issues, on the ground that these other paramedics are similarly situated to plaintiff and that evidence of their treatment by the Department is discoverable on the issue of plaintiff's discrimination claims. The parties agree that the presiding district judge has found these records "relevant" as defined by Federal Rule of Civil Procedure 26(b)(1). However, defendant has resisted production of the documents on grounds of privilege. As a result, plaintiff has filed a motion to compel (doc. # 49), which has been referred by the district judge to this Court for ruling (doc. # 48).*fn1

  Defendant resists production on the grounds that medical records concerning other paramedics are privileged from production by virtue of three separate statutory schemes: the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d, et seq.; the federal Public Health Service Act ("the Public Health Act"), 42 U.S.C. § 290dd-2; and the Illinois Mental Health and Developmental Disabilities Confidentiality Act ("the Illinois Confidentiality Act"), 740 ILCS 110-1, et seq. For the reasons that follow, the Court finds that none of these statutory schemes bars production of the documents in issue. However, we find that a privilege that neither side has addressed — the federal psychotherapist-patient privilege — may apply to some of the documents at issue.

  I.

  All of the documents at issue presently appear to be in the possession of the Department. But, they originally were generated in different ways.

  First, the Department maintains medical records prepared by outside medical personnel. Some of the records are generated by an employee's treating physician, or other outside treating medical personnel, as part of the ordinary course of an employee's treatment. Other records are generated by the treating physicians at the request of the Department, for the purpose of documenting an employee's progress, and are provided to the Department directly by the employee. According to the parties' representations during argument, these records are obtained by the Department in at least two different ways. In some instances, they are obtained directly from the physician pursuant to a consent form signed by the employee. At least one version of the consent form (see Def. Mem., Ex. 4) specifies what information the physician is authorized to provide; specifies the use that may be made of the information ("[e]valuation for return to work; maintaining treatment and follow-up care, and any other matter related to my employment with the Chicago Fire Department, . . ."); and further specifies that the Department may not re-disclose the information without the employee's specific consent. In other instances, the records may be obtained directly from the employee (who presumably requested them from the physician), without any consent form being signed and without any express, written limitation on the use of the information.

  Second, the Department may obtain medical records from physicians specifically designed to assess an employee's fitness to return to work. The doctors who perform these evaluations are not treating physicians, but are outside doctors whom the Department contracts to perform this service. An employee who is sent for this evaluation completes a Fitness for Duty Evaluation Consent Form (Pl. Mem., Ex. 5). In this form, the employee acknowledges that there is no "therapist-client relationship" with the evaluating doctor, and that the information provided to the evaluating doctor is not confidential.

  Third, the Department maintains its own medical section, which employs physicians and other medical personnel. The medical section is a subset of the Department's personnel division, and the employees of the medical section do not render medical or mental health treatment to employees. Rather, the function of the medical section is to determine whether an employee is fit to return to duty. The records created by this section include initial lay up interview forms and summaries of medical reports forms, which are prepared by nurses of the medical section, and medical progress notes, which are prepared by physicians employed by the medical section.

  Fourth, the medical section maintains various administrative or clerical records concerning the employee's status. These include appointment sheets and medical action reports.

  During argument, the parties disclosed that the withheld documents have been identified on a privileged document log. That log discloses the employees to whom the documents relate, and — at least in general terms — whether each employee's medical records relate to substance abuse or mental health treatment. By informal agreement, the parties have treated the log on an "attorneys' eyes only" basis, with neither the log nor the information on it being disclosed to the plaintiff, herself.

  II.

  With that brief overview, we now turn to an analysis of whether the statutory provisions upon which the defendant relies authorizes the defendant to withhold these records from production. For the ...


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