Is the Discovery of Sensitive Medical Records in Disability Discrimination Cases Off-Limits?

medical-recordsBy:  TIMOTHY C. HAUGHEE

JANUARY 23, 2014

It is not uncommon for employers who have been sued by current or former employees for disability discrimination to seek the production of medical records regarding the alleged disability in question.  However, are those medical records, which typically contain sensitive and confidential personal health information, subject to being produced to the employer in such cases?

A recent Florida appellate court opinion has answered that question affirmatively, with a few important caveats.  In the case, the plaintiff/employee was employed by a hospital as a social worker.  During the plaintiff’s employment, she was voluntarily admitted to an unaffiliated psychiatric hospital with respect to an adverse reaction to medication she was taking for her psychiatric condition.  Upon her discharge, the plaintiff’s employer would not allow her to return to work until she was evaluated by, and established a monitoring contract with, a psychiatric consulting company.  The plaintiff refused and subsequently resigned.

Shortly after the plaintiff’s resignation, she filed a lawsuit against her former employer, alleging that she was constructively discharged based on her perceived disability in violation of applicable Florida law.  As the case progressed, her former employer sought the production of records from medical providers who had treated or evaluated the plaintiff.  The plaintiff objected and sought a protective order from the trial court that prohibited the production requested by her former employer.

On appeal, the issue was whether the former employer could require the medical providers in question to produce copies of the plaintiff’s private and sensitive medical records and information.  In its opinion, the court declared that such discovery production was permissible, since the plaintiff had placed her medical and psychiatric condition at issue in the case through her disability discrimination claim, pursuant to which she sought damages for her alleged emotional distress.  The court, however, warned that such discovery must be limited in scope.  For example, the former employer could not request “any and all” of the plaintiff’s medical records; rather, the request must be related to the issues in the case and must be limited in time.  In addition, the records subject to production must first be reviewed privately by the judge (a procedure known as “in camera review”) to ensure that only relevant records would be produced.

As a result, Florida employers who have been sued for claims based on a current or former employee’s disability or other medical condition should be aware of their right to obtain through discovery important medical records that may have an impact on the case, provided that the employers follow the procedures as outlined by the appellate court as noted above.

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