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Washington Bolsters Patient Privacy Rights with New Law

A Washington state law set to take effect June 7 limits the use of medical and mental health records in discrimination lawsuits, strengthening patient privacy rights.

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Source: Thinkstock

By Fred Donovan

- A Washington state law (SB 6027) set to take effect June 7 limits the use of medical and mental health records in discrimination lawsuits, strengthening patient privacy rights, the Seattle Times reported

The state House passed SB 6027 by a vote of 97-1, and the state Senate passed it 42-5.

The #MeToo movement was the catalyst for the state legislature to move on this new law, the news source stated. It is intended to prevent intimate private details of plaintiffs of sexual harassment cases from being revealed in court.

As part of the discovery process, defense attorneys defending companies against sexual harassment charges could reach back into the plaintiff’s past, even as far as birth, for medical and mental health information they could use in their client’s defense.

“It was a way to silence their voices,” state Sen. Patty Kuderer (D-Bellevue) an employment-discrimination attorney, was quoted by the newspaper as saying. “It was a re-victimization, especially in sexual harassment cases,” Kuderer added.

Kuderer said that the discovery process had a “chilling effect” on her clients, some of whom were reluctant to file lawsuits. Defense attorneys used the records to argue that the plaintiff suffered emotional distress for other reasons, such as a death, miscarriage, abortion, or sexually transmitted disease.

“Unfortunately, in civil rights cases concerning discrimination, especially sexual harassment cases, it has become an all too common tactic to force a plaintiff to reveal her private medical history to dissuade her from trying to hold her harasser accountable. SB 6027 simply narrows the conditions under which the defendant can obtain a victim’s healthcare information, creating a fairer system for all parties,” Kuderer commented about the law on her website.

Employment discrimination attorney Beth Touschner said that the new law prohibits private therapy sessions of plaintiffs from being used in court.

The defense tactic of seeking medical records was common when a plaintiff was claiming noneconomic damages, such as mental anguish, humiliation, and other suffering due to harassment or other forms of discrimination, the Seattle Times explained.

Touschner said that defense attorneys had previously been able to use discovery to obtain medical and mental health records that had nothing to do with the alleged discrimination.

Jeff James, a lawyer who defends private-sector employers, argued that there are legitimate reasons for introducing medical records into discrimination lawsuits, such as challenging the cause or magnitude of alleged damages.

“The claim of invasion of privacy is something overblown, and the courts are there to protect the individual,” James told the newspaper. The judge reviews the request by the defense attorneys and can determine whether the records are relevant to the case, he explained.

Kuderer said that judges vary widely in their rulings about how far back medical records could be pulled. She said that in one case a judge ordered the plaintiff to turn over to the defense team all medical records since birth.

Under the new law, defense attorneys can only request medical and mental health records going back two years in three specific circumstances:

• Plaintiff alleges a specific and diagnosable physical or psychiatric injury as a proximate cause of the defendants’ conduct

• Plaintiff relies on the records or testimony of a health care provider or expert witness to seek general damages

• Plaintiff alleges failure to accommodate a disability or alleges discrimination on the basis of a disability

The law reverses a 2013 state Court of Appeals Division I decision in Lodis v. Corbis Holdings Inc. that ruled plaintiffs must produce mental-health records when seeking emotional harm or distress in a discrimination suit.

Steven Lodis was fired by Corbis, and then he filed an age-discrimination and retaliation lawsuit against Corbis, a digital image and stock photography supply company.

A King County Superior Court judge struck down Lodis’ emotional-harm damage claim after he refused to show his medical records with two psychologists during discovery. Lodis appealed, but the Court of Appeals agreed with the prior ruling that he must turn over his records.


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