Colleen M. v. Associates

34 Cal.Rptr.3d 439

132 Cal.App.4th 1466

COLLEEN M., Plaintiff and Appellant, v. FERTILITY AND SURGICAL ASSOCIATES OF THOUSAND OAKS, Defendant and Respondent.

No. B172083.

Court of Appeal, Second District, Division 7.

September 28, 2005.

Appellate Associates, Jonathan P. Milberg; and Morton A. Kamzan for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen & McKenna, Michael J. Trotter, Long Beach, and Jeffrey T. Bell for Defendant and Respondent.

JOHNSON, J.

Colleen M. (Colleen) brought an action for invasion of privacy and infliction of emotional distress against Fertility and Surgical Associates of Thousand Oaks (Associates) alleging Associates wrongfully disclosed the contents of her medical records to her ex-fiancé and to the attorney representing him in a separate action. The trial court granted Associates' motion for summary judgment on the grounds the undisputed facts showed Colleen had no reasonable expectation of privacy in her records and their disclosure was authorized under the Confidentiality of Medical Information Act (CMIA), Civil Code sections 56 through 56.37.¹ The court subsequently entered judgment for Associates and Colleen filed a timely appeal. We affirm.

FACTS AND PROCEEDINGS BELOW

The following facts are undisputed.

Colleen and Ronald O. (Ronald) were engaged for about a year. When their engagement ended they agreed Colleen could make charges on Ronald's credit card. According to Colleen's understanding of the agreement she would not be responsible for payment of the charges she created. Ronald would be fully responsible for the charges in order to offset a debt he owed to Colleen.²

Several months after entering into the credit card arrangement Colleen began treatment at Associates. When she became an Associates patient Colleen signed a document entitled "Assignment of Benefits, Authorization and Financial Statement" which, Associates contends, authorized it to release all information about her treatment to anyone.

The First Disclosure

After Colleen began treatment at Associates she told Ronald she needed to go through a medical procedure which would result in a charge of approximately five to six thousand dollars on his credit card. Colleen did not name or describe the medical procedure to Ronald. When Ronald received his credit card statement he telephoned Associates to inquire about the charge and the medical treatment Colleen was receiving. A representative of Associates told Ronald that Colleen had had an in vitro fertilization.

The Second Disclosure

Nearly a year after learning Colleen was undergoing in vitro fertilization and charging the treatment to his credit card Ronald filed a lawsuit against Colleen alleging breach of contract, fraud and other causes of action. The complaint alleged among other things Colleen represented to Ronald she needed to charge $8,700 on his credit card so she could obtain surgery and therapy for a life threatening blood disorder when in fact the procedure she charged to his card was an in vitro fertilization.

In connection with the arbitration of this lawsuit Ronald's counsel served a subpoena duces tecum on Associates calling for its custodian of records to produce at the office of the arbitrator on the scheduled date of the arbitration "any and all documents and records . . . pertaining to the care, treatment and examination of [Colleen M.]." There is evidence notice of the request for these records was served by mail on the attorney representing Colleen at the arbitration. That attorney, however, filed a declaration in the present case stating he was "[n]ever aware or made aware of said Notice. . . ." Colleen made no objection to the release of her medical records in connection with Ronald's lawsuit.

Prior to the date scheduled for the production of Colleen's medical records at the arbitration Ronald's attorney advised Associates the date for arbitration had been moved back. Associates advised the attorney its custodian of records could not appear on the new date. Pursuant to an agreement between Associates and Ronald's attorney Associates mailed the attorney Colleen's medical records.

The Present Litigation

Colleen brought suit against Associates. In her first and second causes of action Colleen alleged Associates violated her right of privacy by informing Ronald she was undergoing in vitro fertilization and by releasing all of her medical records to Ronald's attorney including information concerning her "personal life, health issues, obstetrical history, gynecological history, HIV status, and information relative to a history of the presence or absence of abortions and miscarriages." In her third and fourth causes of action Colleen alleged Associates' disclosures caused her severe emotional distress.

The trial court granted Associates' motion for summary judgment concluding there were no triable issues of material fact and Associates was entitled to judgment as a matter of law. The court found the disclosures to Ronald and his attorney were authorized by the CMIA and by the consent form Colleen signed when she sought treatment from Associates. The court further concluded these lawful disclosures could not support causes of action for emotional distress.

We affirm the judgment although, as we shall explain, our reasoning differs from the trial court's as to the disclosure of Colleen's medical information to Ronald.

DISCUSSION

I. THE TRIAL COURT ERRED IN RULING AS A MATTER OF LAW COLLEEN CONSENTED TO DISCLOSURE OF HER MEDICAL INFORMATION.

Associates argues Colleen reasonably should have expected when Ronald received his credit card statement he would know she had received treatment at a facility called "Fertility & Surgical Associates" and that Ronald could potentially make an inquiry to Associates from which he would learn she was receiving fertility services to have a child with a new partner.

We agree that when Colleen charged Associates' services on Ronald's credit card she reasonably should have expected Ronald would learn she received treatment at Associates' facility, the treatment had something to do with "fertility" and may or may not have involved a "surgical" procedure. But Colleen's cause of action is not based on a claim Associates revealed to Ronald she received treatment at its facility. Her cause of action is based on Associates' revealing to Ronald the nature of the treatment she received—in vitro fertilization. In order to obtain summary judgment Associates had to present evidence which would "require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [Associates] would not be entitled to judgment as a matter of law, but would have to present [its] evidence to a trier of fact. [fn.]" ³ We cannot say the mere fact Colleen revealed she was a patient of Associates would require a reasonable trier of fact to find it more likely than not Colleen lacked a realistic expectation Associates would keep confidential the nature of the medical treatment she received there.

Associates also contends Colleen's lack of a reasonable expectation of privacy in the nature of her treatment is established as a matter of law by the fact she signed a consent form which authorized the unrestricted release of her medical information. This contention too lacks merit.

The form is on Associates' letterhead and states: "Assignment of Benefits, Authorization and Financial Statement. [¶] I hereby authorize payment directly to Fertility & Surgical Associates of California of the surgical and/or medical benefits, if any, otherwise payable to me for the services as described on the attached claim. [¶] I hereby authorize Fertility & Surgical Associates of California to release any information during the course of my examination or treatment. [¶] I realize that I am responsible for payment in full of the charges on my account for services rendered to me by Fertility & Surgical Associates of California. [¶] By signing this agreement, I acknowledge that I have read, understood and agreed to the terms of the above policy in its entirety." The form is signed and dated by Colleen. This form does not constitute a valid authorization for release of medical information because it does not conform to the requirements of section 56.11.

To protect a patient's right to privacy in her medical records the CMIA prohibits a health care provider from disclosing medical information regarding a patient "without first obtaining an authorization."⁴ Section 56.11 sets out the requirements for a valid authorization. It states in relevant part: "An authorization for the release of medical information by a provider of health care shall be valid if it: (a) Is handwritten by the person who signs it or is in a type face no smaller than 14-point type. (b) Is clearly separate from any other language present on the same page and is executed by a signature which serves no other purpose than to execute the authorization. . . . (d) States the specific uses and limitations on the types of medical information to be disclosed. . . . (h) States a specific date after which the provider of health care . . . is no longer authorized to disclose the medical information. (i) Advises the person signing the authorization of the right to receive a copy of the authorization."

Colleen's purported authorization is invalid because it failed to meet the five requirements quoted above. It is in a type face smaller than 14-point type. It is not clearly separated from other language on the form. Rather, it is the second of four paragraphs on the page; each paragraph is in the same point type and the separation between each paragraph is the same. It is not separately executed. Instead there is one signature applicable to all the terms on the form. The form does not state the specific uses and limitations on the types of medical information to be disclosed nor does it contain an expiration date. Rather it professes to authorize...