Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00125-JJF-MPT Document 102 Filed 05/O3/2005 Page 1 of 2
QLR OBERMAYER
M H REBMANN MAXNNELL SL HIPPEL LLP
Angmew A, Law 1617 JFK aim., 19*** Firm
Philadelphia, PA 19103-1s95
[215i 665-3000 Fax (215) 665-3165
I WVV'W»V,DiI)(3I'I]1B}fCT.CO1`£l
Steven T. Davis Delaware Oilice
Direct 10161 {215) 665-3128 s Mm Road, suire 306A
E—Mc1iI: Stever1.DavisrEDObem1a enoom Wilmington, DE 19806
(302] 656-9094 ras (302) 65a-13051
May 3, 2005
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
For the District of Delaware
844 N. King Street
Lock Box 8 — Room 4209
Wilmington, DE 19801
Rc: Andrea L. Spoltore, f/k/a Andrea L. Cadwallader v.
Wilmington Professional Associates, Inc.
Docket No.: 04-125 JJF
Dear Magistrate Judge Thynge:
Please accept this letter on behalf of plaintiff Andrea Spoltore, in response to the
correspondence from Laurence V. Cronin, Esq., on behalf of defendant Wilmington Professional
Associates (hereinafter WPA) dated May 2, 2005. In his letter, Mr. Cronin requests that a
conference be conducted to discuss his request for discovery from "additional facilities where the
plaintiff has recently received treatn1ent.” We are advised that a telephone conference is being
conducted on this issue on May 5, 2005 at 5:00 p.m.
On April 27, 2005, we advised Mr. Cronin that the plaintiff objected to his requests for the
medical records from the "additional facilities where the plaintiff has recently received treatment"
because: (a) those medical records do not fall within the scope of Fed. R. Civ. Pro. 26(a), since
they were never provided to the plaintiffs treating physician, Dr. J ackovic or to plaintiff s expert,
Dr. Kaye; and (b) they are privileged and protected from disclosure by Title 42 U.S.C. § 290dd-
2(a), which states:
Records of the identity, diagnosis, prognosis, or treatment of any patient which
are maintained in connection with the performance of any program or activity
relating to substance abuse education, prevention, training, treatment,
rehabilitation or research, which is conducted, regulated, or directly or indirectly
assisted by any department or agency of the United States shall . . . be confidential
and be disclosed only for the ptnposes and under the circumstances expressly
authorized under subsection (b) of this section.
Over a Century of Solutions
Philadelphia Harrisburg Pittsburgh _ Cherry Hill, H Vineland lilikiilmington
Pennsylvania Pennsylvania Pennsylvania New Jersey New Jersey Delaware

Case 1:04-cv-00125-JJF-MPT Document 102 Filed 05/O3/2005 Page 2 of 2
The Honorable Mary Pat Thynge, U.S.M.J.
May 3, 2005
Page 2
Subsection (b) of section 290dd-2 essentially limits permissible disclosure to: (l)
occasions when there is consent; absent consent, (2) in a medical emergency; (3) for scientific
research; or (4) by court order. 42 U.S.C. § 290dd-2(b)(l), (2). In the latter instance, the court
must make a finding of good cause before ordering disclosure. Section 290dd—2(b)(2)(C). In
assessing good cause, the court is directed to weigh the public interest and the need for disclosure
against the injury to the patient, the physician-patient relationship, and to the treatment services.
Upon the granting of such order, the court, in determining the extent to which any disclosure of all
or any part of any record is necessary, shall impose appropriate safeguards against unauthorized
disclosure. Section 290dd-2(b)(2)(C). The regulations go on to provide that "[a] court order under
these regulations may authorize disclosure of confidential communications made by the patient to
a program in the course of diagnosis, treatment, or referral for treatment only if" one of three
conditions is met: (1) a threat to life or limb, or of child abuse; (2) prosecution of "an extremely
serious crime" such as homicide, rape, or assault; or (3) litigation "in which the patient offers
testimony or other evidence pertaining to the content of the confidential communications." 42
C.F.R. § 2.13(a), § 2.63(a)(1), (2), (3). Finally the regulations define "records" as "any
infomation, whether recorded or not, relating to a patient" that was received or acquired by the
facility in the course of treatment. Id. § 2.12. Anyone who violates the statute or corresponding
regulations is subject to the criminal penalty of a fine. 42 U.S.C. § 290dd-2(f); 42 C.F.R. § 2.4.
- The Congressional intent to vigorously protect the range of records that defendant WPA
now seeks to obtain, has been held to be "unmistakable" in light of the sweep of the statute, the
broad discretion delegated to the Secretary of Health and Human Services, and the provision for
penalties. Whge v. Connecticut Mutual Life Insurance Co., 818 F.2d 1005, 1009 (lst Cir. 1987)
(Congress recognized that absolute confidentiality is necessary to insure successful treatment.).
Under the circumstances, we object to defendant WPA’s request for medical records from
"additional facilities where the plaintiff has recently received treatment," that relate to treatments
that were initiated two years after the plaintiff was terminated from her position by WPA.
WPA has not demonstrated "good cause" for disclosure of the medical records from the
additional facilities where the plaintiff has recently received treatment. Therefore, Mr. Cronin’s
request should, respectfully, be denied. ·
Thank you for Your Honor’s attention to this matter.
Respectfully yours,
/a/ §teven dDcm•ZA
STEVEN T. DAVIS
STD/ldh
cc: Laurence V. Cronin, Esquire (Via E-Filing)
ersszs
I

Case 1:04-cv-00125-JJF-MPT

Document 102

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Case 1:04-cv-00125-JJF-MPT

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