Limitations to Lien Discovery
There are numerous lien claimants who seem to have been using discovery rules to harass defendants by making unrealistic demands for discovery essentially requesting information the lien claimants did not need access to in defense of their lien. The lien claimant’s demands also seemed contrary to medical privacy rights of the applicant. Now with Labor Code section 4903.6(d) there are new lien rules dealing with this issue and now most lien claimants are not to be provided medical information by the defendant.
Labor Code section 4903.6. (d) reads:
With the exception of a lien for services provided by a physician as defined in Section 3209.3, no lien claimant shall be entitled to any medical information, . . . about an injured worker without prior written approval of the appeals board. Any order authorizing disclosure of medical information to a lien claimant other than a physician shall specify the information to be provided to the lien claimant and include a finding that such information is relevant to the proof of the matter for which the information is sought. The appeals board shall adopt reasonable regulations to ensure compliance with this section, and shall take any further steps as may be necessary to enforce the regulations, including, but not limited to, impositions of sanctions pursuant to Section 5813.
A physician includes physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law, so obviously they remain entitled to discovery of medical information.
Medical information means any individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care, health care service plan, pharmaceutical company, or contractor regarding a patient’s medical history, mental or physical condition, or treatment. “Individually identifiable” means that the medical information includes or contains any element of personal identifying information sufficient to allow identification of the individual, such as the patient’s name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other publicly available information, reveals the individual’s identity.
I view this new Labor Code section as being directed at both the lien claimant but more importantly, the defendant. By that I mean, the defendant is mandated not to release medical information to inappropriate parties or defendants risk being sanctioned. Some judges are taking this so seriously, they are warning counsel, on approval of a C&R, not to disclose medical records to the wrong parties.
The lien claimant can still get medical records, but they will have to file a petition with the WCAB and explain why they need the records. Assuming the WCAB judge agrees with this petition, an order will be issued and then timely discovery should be provided in compliance with that order.