Appeals court says plaintiffs can’t be compelled to
sign medical record stipulations
by Andrew Bergh
So what do British Columbia and Cowlitz County have in common?
Probably not very much. But thanks to a lawsuit filed in Cowlitz
County by two British Columbia residents, personal injury plaintiffs who
don’t want to sign a stipulation for the release of their medical
records can tell defendants to take a hike on much firmer grounds.
Copin Sastrawidiaya and Rianne Matheo reside in British Columbia. On
an unknown date, they were hurt in a two-car accident that occurred in
Cowlitz County. In April 2014, Sastrawidiaya and Matheo – who from this
point on I will gladly refer to collectively as “plaintiffs” – filed a
damages suit against the other driver, Maureen Mughal, in Cowlitz County
Mughal later served discovery requests on both plaintiffs consisting
of interrogatories and requests for production. The interrogatories
sought the identities of plaintiffs’ treating health care providers,
while the requests for production asked plaintiffs to produce copies of
their medical records.
Plaintiffs listed their medical providers in their interrogatory
answers, and in response to the requests for production, said they would
produce the medical records in their possession (which they presumably
did). When they were later deposed, plaintiffs identified yet more
medical providers who had treated them. Apparently, all of the treatment
for their injuries had taken place in British Columbia.
Mughal sent plaintiffs requests to sign stipulations and
“HIPAA-compliant” authorizations for the release of their medical
records from all of their treating providers. The stipulations provided
that the records would be obtained by Mughal’s designee (T-Scan
Corporation). It’s unclear whether Mughal offered to provide free copies
to plaintiffs in return for their cooperation. What is known,
however, is that plaintiffs declined to sign the paperwork.
Mughal then sought help from the trial court.
According to Mughal, plaintiffs had no excuse for refusing to sign
the medical record stipulations because their records were clearly
relevant and discoverable. Plaintiffs countered that they couldn’t be
legally compelled to sign the stipulations, and that Mughal could obtain
their medical records by other means. The trial court disagreed,
however, and entered an order requiring plaintiffs to sign the
Instead of complying with the order, plaintiffs moved for
discretionary review with the Court of Appeals – and their motion was
granted by a court commissioner. After a 16-month delay, Division Two
issued its opinion two months ago in Sastrawidiaya v. Mughal, _
Wn. App. _ (2016).
Except for one giant asterisk, personal injury plaintiffs and their
legal representatives should be pleased by the decision.
At the outset, the Court of Appeals discussed the applicable standard
of review. While discovery orders are usually reviewed for an abuse of
discretion, the issue raised by plaintiffs was whether the trial court
had the authority under our court rules to compel certain discovery.
Since this involves the interpretation of our court rules, said Division
Two, a de novo standard of review was more appropriate.
Mughal argued the trial court was authorized by three different
sources to compel discovery: CR 26, CR 34, and its inherent authority.
First of all, with regard to CR 26, Mughal noted how the rule
provides that parties may obtain discovery relating to any unprivileged
matter relevant to the subject matter of the pending action. But while
the scope of discovery may be broad, the Court of Appeals emphasized
that the “plain language” of CR 26(a) authorizes only certain
methods of discovery (e.g., depositions, interrogatories, requests for
production, and physical examinations) – and that the allowable methods
enumerated in the rule don’t include a “mandatory stipulation” for the
release of medical records.
Division Two further observed that CR 26(a) nowhere contains a
“catch-all” provision authorizing a trial court to order other discovery
not specified by the rule, and that no other provision in CR 26
authorizes a trial court to compel a plaintiff to sign a medical record
stipulation to enable a defendant to obtain their medical records.
Refusing to throw in the towel, Mughal argued that a trial court has
“broad authority to manage the discovery process” under CR 26. In
particular, she cited several provisions conferring discretion on a
trial court to limit the frequency and extent of use of discovery, and
to protect a party against unreasonable or burdensome discovery. But the
Court of Appeals was unyielding:
CR 26 plainly restricts the trial court’s authority only to
limiting the listed methods of discovery. Nothing in CR 26
authorizes the trial court to expand the methods of discovery
beyond those listed in CR 26(a). (Emphasis original.)
As for CR 34, this is the court rule pertaining to requests for
production. CR 34(a)(1) specifically provides that one party may request
another party to produce relevant documents in the responding party’s
“possession, custody, or control.” According to Mughal, by virtue of
this language alone, she could require plaintiffs to sign medical record
stipulations “as part of” her request for production.
But Division Two once again disagreed. While CR 34(a)(1) clearly
requires a responding party to produce certain documents in his
possession or control, nothing in the rule requires that party to
stipulate to a procedure allowing the requesting party to
independently obtain such documents. Moreover, even assuming for
sake of discussion that plaintiffs had failed to produce all of their
medical records, the “appropriate remedy,” said the Court of Appeals,
was for Mughal to move under CR 37(a) for an order compelling production
– and to seek one of the sanctions allowed by CR 37(b)(2) if plaintiffs
thereafter failed to comply with such order.
Lastly, Mughal argued that under its inherent authority, the trial
court could require the production of medical records by “cost-effective
and practical means” – e.g., by requiring plaintiffs to sign medical
record stipulations. In support of her claim, Mughal cited several
out-of-state cases where plaintiffs – “in the interest of efficiency” –
were compelled to authorize the release of their medical records.
Plaintiffs, on the other hand, relied on cases from outside
jurisdictions which held plaintiffs could not be forced to sign
such authorizations. But at the end of the day, the Court of Appeals
found neither side’s authority persuasive:
Given the plain language of CR 26(1) and the absence of any
controlling Washington case, we decline to hold that a trial court
has inherent authority to compel a plaintiff to sign a medical
This is not to say Division Two had no empathy for Mughal’s
claim that using medical record stipulations may be the “most efficient
and cost effective means” for obtaining medical records, especially when
such records are physically located in a foreign country. But as the
Court of Appeals also observed, our court rules have other provisions,
including CR 45, which allow parties to obtain records in Canada or
other foreign jurisdictions. While such procedures may be cumbersome and
more costly, that doesn’t mean our court rules can simply be ignored,
said Division Two.
So let’s get back to that giant asterisk that I mentioned. The issue
in Sastrawidiaya v. Mughal was limited to whether a trial court
has the authority to compel personal injury plaintiffs to sign medical
record stipulations. While answering this in the negative, Division Two
recognized in a footnote that in light of the “control” language in
CR 34, a plaintiff could potentially be required to obtain his medical
records and then produce them in response to a request for production of
documents. Given that possibility, Sastrawidiaya might only be a
prequel of sorts. In the meantime, though, personal injury plaintiffs
certainly have compelling support for the notion they need not bend over
backwards for the defense by signing a medical record stipulation.
WSTLA EAGLE member, former prosecutor and insurance defense attorney, now limits his
practice to plaintiff's personal injury cases, including professional
liability and insurance bad faith.
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