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December, 2016
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 Superior Court.

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 stipulations.

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 record stipulation.

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.

Andrew Bergh, 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.