Sullivan v. Cornerstone Counseling Inc.

On July 28,2000, plaintiff filed a writ of summons against defendants. On August 10,2000, plaintiff, a former client of defendants, requested copies of her treatment records for the purpose of preparing her complaint. Defendants move for a protective order to preclude plaintiff from seeking the discovery. They argue she is not entitled to pre-complaint production of documents and the records are confidential. Argument was scheduled and heard on October 20, 2000.

*501Defendants have cited Rule 4001(c)1 of the Pennsylvania Rules of Civil Procedure in support of their argument that plaintiff’s discovery request is not appropriate at this stage of the proceeding. Defendants argue that since “production of documents” is not specifically referenced in the rule, it is not an appropriate method of discovery for the preparation of pleadings. Although plaintiff also refers to Rule 4001(d)2 we find Rule 4009.11 most instructive. The rule provides:

“Rule 4009.11 Request upon a party for production of documents and things

“(a) The request may be served without leave of court upon the plaintiff after commencement of the action and upon any other party with or after service of the original process upon that party.”

A plaintiff has the burden of filing a complaint which supports her cause of action, even though the facts are known to the defendant. Gross v. United Engineers and Constructors Inc., 224 Pa. Super. 233, 302 A.2d 370 *502(1973). The proper procedure for a plaintiff to obtain the information necessary for the preparation of an adequate complaint is to commence her action by filing a praecipe for a writ. Id. In the case before us, original process was filed by writ of summons on July 28, 2000 and served upon defendants on August 10, 2000. Plaintiff’s discovery request was served on defendants August 15, 2000.

The remaining issue raised by defendants requires us to consider whether a patient has access to her own confidential drug and alcohol treatment records. Defendants have referred to two federal statutes3 and one state statute4 as supporting their motion for protective order and proposition that plaintiff’s records should not be disclosed to her.5 In response, plaintiff has cited numerous cases involving disclosure of mental health records.

We will first review the federal law concerning confidentiality of alcohol and drug abuse patient records. Statutory authority for confidentiality of alcohol abuse patient records is codified at 42 U.S.C. 290dd-3. It provides that records may be disclosed only with the consent of the patient, or in the absence of consent, only in accordance with specified procedures. The scope of protections are found in 42 CFR, part 2. Absent within the statute, but present in the regulations, is a section en*503titled “Patient access and restrictions on use.” 42 CFR §2.23. This section provides:

“(a) Patient access not prohibited. These regulations do not prohibit a program from giving a patient access to his or her own records, including the opportunity to inspect and copy any records that the program maintains about the patient. The program is not required to obtain a patient’s written consent or other authorization under these regulations in order to provide such access to the patient.”

Confidentiality of patient records is addressed by the Pennsylvania Legislature in 71 P.S. §1690.108.6 Like its *504federal counterpart, the Pennsylvania statute permits disclosure only with the patient’s consent or without consent in emergency situations. In ascertaining legislative intent, courts are to presume that the General Assembly did not intend an unreasonable result. 1 Pa.C.S. § 1922(f). While we understand that sometimes disclosure of a patient’s treatment records to the patient may not be therapeutic, it is unreasonable to deny a patient access to her own information. The purpose of the privilege is to encourage diagnosis and treatment.7 We believe the right to claim a privilege is a personal one belonging to the individual protected by the statute. A patient should not *505have to engage in legal proceedings in her quest for copies of her own treatment records.

Accordingly, the attached order is entered.

ORDER

And now, November 7, 2000, defendants’ motion for protective order is denied and they are directed to provide plaintiff with the requested documents.