An ongoing case in New Jersey has highlighted the questions surrounding what confidential health information an employer may access when an employee seeks emotional distress damages in an employment discrimination lawsuit.
What are emotional distress damages?
There are several types of damages that an employee may recover in an employment discrimination case. This includes emotional distress damages, which are a specific subset of compensatory damages. These damages are designed to compensate an employee for the emotional toll of an employer’s unlawful discrimination.
Emotional distress damages can be awarded for a variety of harms, including:
- diagnosed psychiatric conditions (such as depression or anxiety disorder);
- loss of sleep;
- mental anguish;
- reputational harm; and/or
- strained personal relationships.
Proving emotional distress requires the plaintiff to show “specific evidence of actual harm.” Williams v. Trader Pub. Co., 218 F.3d 481, 486 (5th Cir. 2000).
This harm can come in many forms. A plaintiff may introduce testimony from friends and family who can speak to changes in their emotional state. Additionally, they may rely on evidence that discusses their emotional state, including journal entries, email/text communications, or testimony from a doctor or mental health professional. Stronger evidence, including professional testimony, is usually necessary to support a larger award.
Plaintiffs who seek emotional distress damages must be prepared for an employer to delve into their personal history. An employer may dig up painful past events (divorce, death in the family, etc.) in order to deflect blame for the plaintiff’s emotional suffering. Employers may also seek a plaintiff’s medical records, particularly in cases in which the plaintiff alleges a specific psychological harm.
The release of private medical records is currently at the center of Gross-Quatrone v. Mizdol et al., a case involving a New Jersey judge who alleges she was the victim of discrimination.
The Gross-Quatrone case
Facts
In 2015, Judge Deborah M. Gross-Quatrone was accused by colleagues of multiple forms of misconduct, including making inappropriate remarks to court officials, using her secretary to perform personal tasks, and allowing her law clerk to begin her position before the permitted start date.
During this time period, Judge Gross-Quatrone alleges that she was subjected to disparaging remarks about her gender and appearance from one of the defendants, Assignment Judge Bonnie Mizdol. After a meeting between the parties in which Gross-Quatrone was accused of secretly using a recording device, Mizdol submitted a complaint with the New Jersey Supreme Court’s Advisory Committee on Judicial Conduct (ACJC), who advised that Gross-Quatrone be suspended for two months without pay.
Judge Gross-Quatrone filed suit in 2017, claiming that she was discriminated against and subject to a hostile work environment on the basis of gender. After she successfully appealed the dismissal of her complaint, Gross-Quatrone filed an amended complaint in which she alleges more details about her emotional distress, including that she has suffered from ill health effects such as headaches, sleeplessness, and nosebleeds.
Gross-Quatrone’s Medical Records
The defendants in the case are seeking to obtain a “complete copy of the patient file” from the plaintiff’s medical care provider at Hackensack University Medical Center. Gross-Quatrone refused to sign a release authorizing them to do so.
In a brief opposing the defendants’ motion to compel, the plaintiff argued that the defense was engaged in a “fishing expedition.” Gross-Quatrone argued that, “Defendants are not entitled to rummage through Plaintiff’s unrelated medical records in hopes that maybe there might be something in those records.”
The plaintiff also offered multiple compromise options, including:
- signing a release that was narrowly tailored to the facts of the case;
- allowing the plaintiff’s counsel to review the records and produce anything of relevance, including a log of information not being produced; or
- turning over the records to the Court for in camera review.
All three of these options were rejected by the defense, who stated in their brief that they “are aware of no mechanism by which plaintiff is permitted to screen subpoenaed materials for relevance before defendants have had an opportunity to review the materials.”
When can an employer view a plaintiff’s medical records?
In Judge Gross-Quatrone’s case, the defendant has argued that the records are discoverable/should be turned over, since courts do not recognize a federal common law physician-patient privilege.
In her brief opposing the motion to compel, Gross-Quatrone contended that even absent a common law physician-patient privilege, the Health Insurance Portability and Accountability Act (HIPAA) ensures the confidentiality of medical records. Under HIPAA, which requires patients to consent to the release of medical records, Gross-Quatrone argues that the filing of a lawsuit does not automatically waive the confidentiality of health information.
Courts differ in their approaches to the discoverability of medical records. While a plaintiff claiming emotional distress does not give the employer “an unfettered right to pursue discovery into [the plaintiff’s] entire medical history,” courts frequently compel parties to sign broad medical releases. Manessis v. New York City Department of Transportation, 02 Civ. 359 (SAS), 2 (S.D.N.Y. Feb. 10, 2003).
A court may compel the release of a plaintiff’s medical records when they place a medical condition “squarely at issue” in their case. Barlow v. Dupree Logistics, LLC, No. CIV.A. 1:14-BE-180, 3 (N.D. Ala. Aug. 5, 2015).
Usually, if a plaintiff asserts that they suffered non-specific or “garden variety” emotional distress, courts do not require the plaintiff to release their medical records. But occasionally courts do mandate the release of medical records in cases that do not involve a specific, medically diagnosed harm if the court believes the medical history may be relevant to understanding the factors that led to the plaintiff’s emotional distress. Maurer v. Chico’s FAS Inc., No. 4:13CV519 TIA, 1 (E.D. Mo. Dec. 31, 2013).[1]
This, however, does not mean that employers have unlimited access to an employee’s non-mental health related medical records. Courts have declined to authorize discovery in cases where requested medical records went too far, including:
- requests for complete medical records, including routine appointments[2];
- requests for contact information from all healthcare providers visited during the course of the plaintiff’s employment.[3]
Judge Gross-Quatrone’s case will require the court to decide whether the defendants’ request for medical records are sufficiently relevant, or whether it is indeed an overbroad “fishing expedition” similar to other motions to compel for medical records which have been denied.
[1] For similar reasons, courts often do not limit discovery to medical records dealing with a patient’s mental health. While records surrounding a physical injury well in a plaintiff’s past are unlikely to shed light on their current distress, courts acknowledge that “if an injury persisted up to the date of the alleged emotional injury,” it may be relevant in drawing conclusions about the plaintiff’s ongoing emotional state. Hawkins v. Anheuser-Busch, Inc., No. 2:05-CV-688, (S.D. Ohio Aug. 22, 2006).
[2] Langenfeld v. Armstrong World Indus., Inc., 299 F.R.D. 547, 551 (S.D. Ohio 2014); Cappetta v. GC Servs. Ltd. P’ship, 266 F.R.D. 121, 126 (E.D. Va. 2009).
[3] Fritsch v. City of Chula Vista, 187 F.R.D. 614, 634 (S.D. Cal. 1999).