United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L. ELLIS, UNITED STATES DISTRICT JUDGE
connection with a discovery dispute in a separate Indiana
case, Defendants St. Vincent Medical Group
(“SVMG”), St. Vincent Carmel Hospital, Inc. (the
“Hospital”), and Hannah Thornton, R.N., N.P.
filed a motion to issue an authorizing order for the
disclosure of the rest of Plaintiff Jane Doe's records at
the Positive Sobriety Institute (“PSI”). The
Court denies Defendants' motion because Defendants have
not shown whether such records exist or even a good faith
attempt to determine whether such records exist, and instead
have attempted an end-run around their denied motion to
compel such records in the Indiana case, which is not a
proper use of the federal courts.
an OB/GYN physician practicing at SVMG in Indianapolis,
Indiana. She has staff privileges at the Hospital in Carmel,
Indiana. Doe sued these entities, along with Thornton, an
employee of the Hospital, in Indiana Commercial Court in
Marion County. She is pursuing claims of fraud, constructive
fraud, negligent misrepresentation, tortious interference
with employment relationship, defamation, and conspiracy.
This matter is currently pending under Indiana case number
49D01-1807-PL-026160 (the “Indiana Lawsuit”).
Indiana Lawsuit, Doe alleges that in December 2017, Thornton
falsely accused her of having an odor of alcohol on her
breath while she was at work. Although no one timely tested
Doe's blood alcohol level, Thornton's employer, the
Hospital, questioned Doe about the incident and referred the
matter to Doe's employer, SVMG. SVMG placed Doe on
administrative leave and did not allow her to return to work
until she sought an evaluation for alcohol abuse through the
Indiana State Medical Association (“ISMA”).
ISMA referred Doe to PSI in Chicago. PSI diagnosed Doe with
“alcohol use disorder” and subsequently treated
her for it. After completing PSI's treatment program in
March 2018, Doe returned to work, subject to a five-year
monitoring contract with the ISMA.
disagrees with PSI's diagnosis that she is an alcoholic;
however, for the purposes of the Indiana Lawsuit, Doe argues
that she need not prove that PSI erred in its diagnosis to
prevail on her claims.
and Doe have been engaged in this discovery dispute regarding
the production of Doe's records at PSI for some time.
Initially, Defendants requested that Doe sign a written
authorization that would have permitted Defendants'
counsel to directly request and obtain Doe's evaluation
and treatment records from PSI. Doe did not sign the
authorization; rather, she obtained the records from PSI and
produced them to Defendants. She produced these documents
under a protective order designating all documents related to
her counseling and treatment records as attorney eyes'
only. See Doc. 1-3.
records custodian at PSI then produced documents to
Defendants' counsel relating to Doe's records at PSI,
“including only the Multidisciplinary Comprehensive
Assessment Program, Lab Tests, History & Physical,
Treatment Plan, Progress Notes, Discharge Summary and Billing
Statements.” Doc. 18-1 at 2. The records custodian
continued, saying “[w]e think this will give you enough
information. If after review, you need more information or
more records, let us know.” Id. Defendants
later responded to the records custodian, writing:
“[a]ttached are the records you sent us. I just need
you to review and let me know what else hasn't been sent
to our offices. If there is more, we need all of it.”
Doc. 18-2 at 2. The records custodian replied: “[y]es,
we sent you all the documents.” Id.
Defendants filed a motion to compel against Doe, which the
Indiana court denied with respect to the request for written
authorizations for records access with PSI and ISMA.
See Doc. 1-4 at 1. Following this denial, Defendants
filed the present motion to issue a subpoena to PSI for
U.S.C. § 290dd-2 governs this discovery dispute, which
protects the confidentiality of records containing the
“identity, diagnosis, prognosis, or treatment of any
patient which are maintained in connection with the
performance of any program or activity relating to substance
abuse education, prevention, training, treatment,
rehabilitation, or research, which is conducted, regulated,
or directly or indirectly assisted by any department or
agency of the United States.” 42 U.S.C. §
290dd-2(a). Two regulations, 42 C.F.R. §§ 2.63 and
2.64, control the process of disclosing these confidential
records without the patient's consent. 42 C.F.R. §
2.63 lists the three instances in which a court may order
(a) A court order under the regulations in this part may
authorize disclosure of confidential communications made by a
patient to a part 2 program in the course of diagnosis,
treatment, or referral for treatment only if:
(1) The disclosure is necessary to protect against an
existing threat to life or of serious bodily injury,
including circumstances which constitute suspected child
abuse and ...