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.