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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Five of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7121 Fairway Drive
Suite 203
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 829-4385

315 Montgomery Street

Suite 902

San Francisco, CA 94104







November 8, 2012 

 State and Federal Law Alert




Court Rules Employee's FMLA Lawsuit Permits Disclosure of Spouse's Medical Records 




Despite HIPAA's Privacy Rule, the medical records of an employee's spouse may be disclosed during a Family and Medical Leave Act ("FMLA") lawsuit because the employee claimed she was wrongfully terminated for taking FMLA leave to care for her sick husband.


Under the HIPAA Privacy Rule, a health care provider, as a "covered entity," may disclose protected health information ("PHI") in response to a subpoena or discovery request only after receiving adequate assurances from the party requesting the information that reasonable efforts were made to either: (i) notify the person who is the subject of the PHI about the request, or (ii) seek a qualified protective order from a court.


Under FMLA, employers with 50 or more employees must provide up to 12 weeks of unpaid leave during a 12-month period to eligible employees for certain specified events such as personal illness or to care for a seriously ill family member; childbirth; adoption or placement of a child; military caregiver leave and military exigency leave. 


In Tavares v. Lawrence & Memorial Hospital (U.S. District Court, District of Connecticut), an employee sued her former employer, claiming that she was wrongfully terminated for taking FMLA leave to care for her husband after he underwent surgery. The employee claimed that the surgeon who performed the surgery had provided a letter which recommended the husband spend time in a warmer climate to promote his recovery. She further contended that the surgeon's letter indicated that the husband would require her continuous care while recovering.


The employer sought a qualified protective order for the medical records of the husband that were in the surgeon's custody. The employee objected, asserting that, because the husband was not a party to the lawsuit, his medical records were not relevant, and, therefore, were protected from disclosure under HIPAA.


The employer countered that the husband's medical records had a central role in determining whether the employee had misused her FMLA leave because the husband's medical condition was the basis for the employee's leave. Thus, the employer argued, the surgeon's records were critical to its ability to evaluate and defend against the employee's lawsuit. In particular, the employer contended that the surgeon's letter recommending the trip to a warmer climate was not written until after the employer terminated the employee.


The court agreed with the employer that the husband's medical condition was relevant because it was, in fact, the basis for the employee's FMLA leave. Therefore, the husband's medical records were necessary to determine whether the employee was wrongfully terminated.


The court granted the employer's request for discovery, but limited disclosure of the husband's medical records to the period between the date of the injury for which the surgery was required and the date the employee was terminated. The court further ruled that the employer could not use the husband's medical records for any purpose other than the litigation at hand and that the records must either be destroyed or returned to the surgeon once the litigation ends. 




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.