Legal News

RECENT DECISION ON INTERPLAY BETWEEN CONFIDENTIALITY OF MEDICAL INFORMATION ACT AND CIVIL CODE SECTION 47(B) LITIGATION PRIVILEGE

A physician who wrote a letter to the DMV to report that her patient should not be driving a school bus due to her concern for his safety and that of the public, was held not to have violated the patient’s right to privacy of his medical information under the Confidentiality of Medical Information Act (“CMIA” at California Civil Code (“CC”) section 56, et seq.) even though the patient objected to the release of that information. Last week in McNair v. City and County of San Francisco (Nov. 22, 2016) 16 C.D.O.S. 12417, Division Four of the First Appellate District of the California Court of Appeal held that the litigation privilege found at CC section 47(b) permitted such disclosure by the physician to the DMV and barred plaintiff’s intentional tort (breach of privacy rights) and breach of contract claims against the physician after the plaintiff’s commercial driver’s license was revoked. In so holding, the appellate court upheld the trial court’s grant of a motion for summary adjudication of the intentional tort cause of action, and nonsuit on plaintiff’s breach of contract case. Plaintiff timely appealed.

Plaintiff Michael McNair first got his commercial driver’s license in 2000 and began driving 25-30 weeks a year, despite a somewhat complicated medical history that included diabetes and cognitive defects. Dr. Kim was employed by the San Francisco Department of Public Health (DPH) and treated McNair between 2004 and 2006. The evidence showed that before plaintiff was treated by Dr. Kim, he had signed numerous consents to healthcare with DPH; all consent forms specified that his medical records would not be disclosed without his written authorization “absent an articulated exception to this general rule. One such exception was situations in which the DPH was ‘permitted or required by law’ to release the information.”

In 2002, the plaintiff was examined in connection with efforts to obtain Social Security Insurance (SSI) disability payments. McNair reported that in the past he had “followed his own bus routes rather than those designated by his employer and was unwilling to assist passengers and follow procedures.” He noted that he did not want to “babysit” people, and on one occasion “improperly drove a group of children from San Diego, California to Tijuana, Mexico.” He attributed this folly to having made a mistake; he said he “just didn’t think.” The examining physician concluded that given the condition of the patient and his reported behaviors, “because of his cognitive deficits, impulsivity, and poor judgment and insight, [he] found Mr. McNair to be unable to seek or even maintain basic employment.”

In 2004, Mr. McNair saw Dr. Kim and asked her to determine whether he was eligible for a commercial driver’s license, a request Dr. Kim refused on the basis of his “cognitive disorder and uncontrolled diabetes.” Plaintiff then went to other physicians at the public health clinic where Dr. Kim practiced, but none would agree to certify him. Apparently, between 2002 and 2004, Mr. McNair had been able to find other physicians to sign off on his request for a commercial license, and in his 2004 application did not disclose his previously diagnosed cognitive or personality disorders—this despite the fact plaintiff was required by the DMV to “certify under penalty of perjury that he had provided true and correct information concerning his health.” McNair later claimed he “didn’t think he needed to disclose the information.” Again in 2005, Dr. Kim wrote in support of McNair’s SSI application that it was her opinion “he was not able to hold down any type of full-time employment;” she was under the impression plaintiff was approved for SSI payments.

AC Transit hired McNair as a bus operator in April 2006, and he began driving full-time in August 2006. On October 18, 2006, Dr. Kim learned the patient had applied to drive a school bus when a nurse told her that McNair needed a doctor’s note excusing his absence from a hearing to approve his certification to drive a school bus. She did not write the note, since the plaintiff was not at the doctor’s office on the day of the missed hearing. Instead, Dr. Kim called the plaintiff and told him “he should not be driving children on a bus due to his poor health. Dr. Kim also told McNair that if she were to write anything to the DMV, then she would have to write about McNair’s health conditions. McNair stated that he did not want Dr. Kim to communicate with the DMV.”

Despite plaintiff’s objections, Dr. Kim wrote the DMV on October 18, 2006. She explained plaintiff’s conditions, explained she did not sign off on his medical evaluation forms and said that, in her opinion, the plaintiff was “functionally illiterate, lacks the capacity to set limits on himself and fails to understand the consequences of his behavior.” In addition, the patient had some form of brain damage that affected his “judgment, impulse control, insight, forethought and ability to introspect.” She said she wrote the letter “out of concern for McNair’s safety and the safety of the public,” and that the letter was based “on her own observations made while treating McNair” and on prior specialists’ reports. Thereafter the DMV revoked McNair’s commercial and regular driver’s licenses; the regular license was reinstated after a hearing, but the commercial license was not reinstated before AC Transit terminated him. The lawsuit followed.

Plaintiff’s complaint alleged a cause of action for violation of privacy rights under both the CMIA and HIPAA (even though HIPAA does not provide a private right of action) based on Dr. Kim’s letter to the DMV. Plaintiff also alleged breach of contract—“[p]artly written, partly oral and partly implied”—and attached several privacy notices that were routinely provided to DPH patients. (Interestingly, plaintiff’s own attachments provided that a patient’s private information could be “shared when required by federal, state or local law.”)

The trial court granted defendant’s motion for summary adjudication of issues as to the plaintiff’s intentional tort action for violation of his privacy rights under the CMIA. In so ruling, the court stated: “The intentional tort cause of action fails based on the litigation privilege. [Citations]. HIPAA does not preempt the litigation privilege. The purpose of HIPAA is to protect medical confidences, not provide a cause of action.” Before the trial of the action, a number of issues were determined by in limine motions. At trial, defendant moved for nonsuit on the breach of contract action at the close of plaintiff’s case, which the court granted. It held that, among other things, the litigation privilege applied to the breach of contract action and that Dr. Kim was permitted to report someone to DMV whom she believed caused a danger to the public.

The Court of Appeal began with a discussion of the applicable laws, including Health & Safety Code section 103900 which requires physicians to report disorders relating to lapses of consciousness or any other condition that could affect a driver’s ability to drive, and the litigation privilege found at CC section 47(b). Section 47(b) provides that a “publication or broadcast” made as part of a “judicial proceeding” is privileged. The privilege is applied broadly, and any doubts are to be “resolved in favor of the privilege.” There is precedence for a communication to the DMV—“as an administrative body of the state”—to be “recognized as engaging in quasi-judicial proceedings for purposes of the privilege.” Additionally, the CMIA provides exceptions to the rule that a patient’s written authorization is required before private medical information may be disclosed. Section 56.10(c)(14) provides that a physician may disclose medical information “when the disclosure is otherwise specifically authorized by law.”

The appellate court then concluded an absolute privilege applied in this case that “bars McNair’s cause of action for intentional tort.” Dr. Kim was an individual “authorized by law” to communicate with the DMV regarding McNair’s medical condition and his ability to operate a school bus in order to aid that “quasi-judicial agency” in making a determination for the public welfare. Contrary to plaintiff’s argument, the protections offered by the CMIA are not compromised by application of the litigation privilege. Noting that “the protective privilege [of the CMIA] ends where the public peril begins.” The court held that because the state “clearly has a policy of encouraging, and sometimes even mandating, reports regarding suspected unsafe drivers,” in light of the litigation privilege, Dr. Kim’s disclosure did not violate the CMIA, regardless of whether her letter to the DMV complied with all of the technical requirements of Health & Safety Code section 103900(a).

Plaintiff maintained the litigation privilege should not bar his breach of contract action. However, the court cited three cases in which the litigation privilege was applied in breach of contract actions. It also cited to the consent forms and other writings/statements proffered by plaintiff in support of his breach of contract action and pointedly observed “the Consents all stated that McNair’s medical records could be released by DPH when ‘permitted or required by law.’” Additionally, the HIPAA and DPH privacy notices specifically stated private information could be disclosed without the patient’s prior consent “when necessary to prevent a serious threat to your health and safety or the health and safety of the public or another person.” Because Dr. Kim’s letter to the DMV furthers the policies underlying the litigation privilege, the court ruled the privilege bars not only plaintiff’s tort claim, but his breach of contract claim, as well. Plaintiff could not try to plead around the application of the privilege by labeling it a breach of contract claim. “It is the gravamen of the cause of action rather than its designation that is controlling. (Cite) Here, both causes of action asserted by McNair are based solely on the propriety of Dr. Kim’s letter to the DMV. Thus…McNair has found a ‘conveniently different label for pleading what is in substance an identical grievance arising from identical conduct.’”

Interestingly, the court cites the Pettus v. Cole decision in a footnote, and distinguishes the Pettus defendants’ unsuccessful attempts to use the more general privilege found in section 47(c). McNair cited to Pettus in an attempt to claim that the litigation privilege of 47(b) would render the CMIA “significantly or wholly inoperable.” However, the court noted that Pettus is not relevant to McNair’s case because it did not involve the litigation privilege of 47(b); in addition, the unauthorized disclosure of information in that case was made to plaintiff’s employer, DuPont, not to a judicial or quasi-judicial administrative agency such as the DMV.

The McNair decision is very helpful to physicians who face the dilemma of whether to write to the DMV, or any other public quasi-judicial administrative agency, about a patient whose medical condition poses a threat to himself or the public. The combination of the litigation privilege and the “catch all” section 56.10(c)(14) could be used to disclose otherwise confidential information, even over the patient’s objection. Such disclosures should, of course, be made thoughtfully, with the assistance of counsel and in consideration of whether the rulings in McNair are applicable.

For more information on this and other recent decisions, please reach out to Reneé A. Richards.