In the discovery phase of an employment lawsuit, it is often the case that the defendant-employer will ask the plaintiff-employee to produce her medical records for inspection. In California, there are three main objections that can generally be raised to this request:
- Physician-Patient Privilege. California Evidence Code section 994 states that a patient has the privilege to refuse to disclose confidential communications between herself and her physician;
- Psychotherapist-Patient Privilege. California Evidence Code section 1014 states that a patient has the privilege to refuse to disclose confidential communications between herself and her psychotherapist.
- Constitutional Right to Privacy. The California Constitution bestows a broad right of privacy. (See Cal. Const. art. I, § 1; El Dorado Sav. & Loan Ass’n v.Super. Ct. (1987) 190 Cal.App.3d 342, 345). This privacy right can extend to a patient’s medical records as well as to the identity of the patient’s provider. (See e.g. Stallworth v. Brollini (N.D. Cal. 2012) 288 F.R.D. 439, 444).
Notably, however, all three of these objections can be waived by a plaintiff if the plaintiff places his or her mental or physical condition “at issue” in the lawsuit. (See e.g. Vinson v. Superior Court, 43 Cal. 3d 833, 840 (1987) [holding that plaintiff partially waived her privacy rights by alleging a claim for intentional infliction of emotional distress arising from sexual harassment]; City & Cty. of San Francisco v. Superior Court In & For City & Cty. of San Francisco (1951) 37 Cal. 2d 227, 232 [holding that plaintiff waived the physician-patient privilege by bringing action for personal injuries).
In the context of an employment dispute, the question of whether one’s mental and physical states are “at issue” often boils down to a case-by-case analysis, in which the court will attempt to balance the right of privacy with the need for the discovery. (See Tylo v. Superior Court (1997) 55 Cal. App. 4th 1379, 1387). In general, federal courts are hesitant to allow discovery into a plaintiff’s medical history if the plaintiff has only alleged “garden variety” emotional distress in connection to his or her employment claim. (See E.E.O.C. v. Serramonte (N.D. Cal. 2006) 237 F.R.D. 220, 222). Courts define “garden-variety” emotional distress as “ordinary or commonplace emotional distress” or that which is “simple or usual.” (Lira v. Chipotle Mexican Grill, Inc. (N.D. Cal. 2018) No. 17CV02588JSWKAW, 2018 WL 2128707, at *3).
By contrast, courts give more serious consider to emotional distress that is not “garden-variety,” such as claims of ongoing emotional distress, severe emotional distress, or where there is a claim for intentional infliction of emotional distress. (See e.g. Doyle v. Superior Court (1996) 50 Cal. App. 4th 1878, 1886; E.E.O.C. v. Serramonte (N.D. Cal. 2006) 237 F.R.D. 220, 224.) However, even in these situations, often courts will require the scope of discovery to be limited to specific mental/physical conditions that are at issue in the lawsuit.
Overall, there is a risk that the opposing party to an employment lawsuit may be entitled to see at least a part of your medical history. This is a consideration to discuss with your attorney, ideally before filing litigation, to ensure that you are not caught off guard later in the process. The employment attorneys at Dhillon Law Group routinely handle these issues and would be happy to speak with you about the specific circumstances of your case.
Dorothy Yamamoto is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.
