Commentary: Law firm sued over medical records disclosure.

• Author: Finerty, John

Byline: John Finerty

In employment litigation, a former employee's medical records may be relevant to a number of issues. For example, medical records are used routinely in worker's compensation cases, disability claims and OSHA cases. However, does an employee have a claim against defense counsel when company lawyers file a former employee's medical records in a court case? One California plaintiff thinks so.

Rakich v. Paul Hastings Janofsky & Walker

The law firm of Paul Hastings Janofsky & Walker represented EMC Corp. as defense counsel in a wrongful termination case brought by a former employee, Caron Rakich. Not only did Rakich sue EMC Corp., but, she has also sued the Paul Hastings firm, alleging the firm violated her right to privacy by disclosing medical information during the course of litigation. According to Rakich's attorney, he filed a form complaint alleging breach of privacy and is currently deciding whether to continue pursuing the claim. If so, he intends to amend the complaint, possibly adding additional claims.

Rakich v. EMC Corp.

Caron Rakich sued EMC Corp. in the U.S. District Court for the Northern District of California for everything from misrepresentation to unfair business practices - 14 causes of action in all. She sought both declaratory relief and monetary damages, in addition to a permanent injunction. Rakich also wanted $1 million in emotional distress damages.

During the litigation, a discovery dispute developed over Rakich's medical records. Rakich's claim for emotional distress over her termination, EMC's lawyers argued, put at issue all medical evidence related to her emotional state of mind, including the names of her doctors and all her medical records. Rakich and her attorneys refused to turn over her medical records, citing privacy rights.

Paul Hastings, on behalf of EMC, filed a motion to compel with a supporting declaration that included as an exhibit an "evidence of insurability" form. The U.S. Magistrate Judge in the case denied EMC's discovery request; Rakich claimed the insurance form EMC filed in support of its motion disclosed private medical information. The parties promptly agreed to seal the exhibit after the plaintiff objected but, according to Rakich's attorney, the damage had already been done.

Wisconsin Law on Medical Records Privacy

Sections 146.81 to 146.84 of the statutes governs the confidentiality of medical records in Wisconsin. Under the statute, "All patient health care records...