J & M

J O N E S & M A Y E R

Attorneys at Law

3777 North Harbor Boulevard • Fullerton, California 92835

(714) 446-1400 • (562) 697-1751 • Fax (714) 446-1448

www.jones-mayer.com

“Fitness for Duty Evaluations:

The Doctor v. The Lawyer”

International Association of

Chiefs of Police, Inc.

November 14, 2004

Los Angeles, California

By: Martin J. Mayer, Esq.

Jones & Mayer

Contents

Case Studies by Martin J. Mayer

Sample Cases

California Government Code § 1301

Civil Code § 56.10

Vita, Martin J. Mayer

Case Studies

The involvement and influence of psychologists and psychiatrists in the hiring, retention and/or dismissal of peace officers throughout the country is significant. In many jurisdictions state law requires that applicants for law enforcement positions not only be approved as to their physical abilities to do the job, but also as to their psychological and/or emotional ability to be peace officers.

The use of psychological and/or medical evaluations of employees in general has also become a prime concern to all employers primarily due to the advent of the American With Disabilities Act of 1990 (ADA). Additionally, certain court decisions have affected the relationship between the employer, the applicant and/or employee and the medical provider. Finally, the issue of one’s right to privacy versus the employer’s need to evaluate fitness for duty is frequently the subject of litigation.

As special counsel to law enforcement management we interact rather extensively with psychiatrists and/or psychologists on a variety of matters affecting public safety employees. Law enforcement management is required to aggressively and thoroughly review and analyze applicants for, and current employees in, law enforcement positions. At the same time the employer is restricted in how it can gather information, and what information it can use in making decisions regarding not only applicants, but current employees as well. Following are examples of just a few cases decided during the last several years which illustrate how the issues of mental health and the rights of the employee interact.

As always we urge that if any of the information contained herein is of interest that you obtain the decision of the court itself and not rely upon our characterization of it. Furthermore, and most important, no action or decision should be reached in any of these areas without consulting with the department’s appropriate legal advisor.

Martin J. Mayer

JONES & MAYER

Sample Cases

Coski v. City and County of Denver, (1990) 795 P.2d 1364

“The infrequency with which a particular officer fires a gun and makes an arrest in furtherance of her duty does not eliminate the need to be capable of performing that duty. Thus, we conclude that the ability to fire a weapon and to make a forceful arrest is an essential job function because it is reasonable to require this of all police officers.”

Bauschard v. Martin, (1993 and 1995) 1993 U.S. Dist. Lexis 3358 and 1995 U.S. Dist. Lexis 11346.

Plaintiff was a police officer with the Chicago Police Department when he was ordered to submit to a psychological evaluation to determine his fitness for duty. He was relieved of his police powers but continued to receive full pay benefits. A psychologist employed by the City of Chicago conducted a psychological evaluation of plaintiff and concluded that he was not fit for duty. After filing a grievance he submitted to a panel of three (3) psychologists who also evaluated the plaintiff and determined that he was not psychologically fit for police duty. Following that still another grievance panel, compromised of additional psychologists agreed with this determination.

After the initial determination had been made that Bauschard was not fit for duty, Chicago P.D. placed him on unpaid leave of absence. When he applied for disability benefits the Chicago Pension Board found twice that he was fit for duty and refused to award him benefits. Nonetheless, Chicago P.D. refused to reinstate him and kept him on unpaid leave of absence. The court held that placing the Plaintiff on indefinite, unpaid leave of absence. The court held that placing the Plaintiff on indefinite, unpaid leave, as a result of the defendant having determined that he was unfit for duty, violated the plaintiff’s due process rights when Chicago refused to afford him a hearing.

“Having acquired a property right in his continued employment… Baushard has a protected interest in his salary and benefits.” Since the department was refusing to pay him, although he had not been terminated, the court said “[t]he interest in continued employment would be hollow indeed if it did not secure payment for the primary benefit of being employed.”

The court continued by stating that since the “psychological review panel did not provide Bauchard the opportunity to in any way challenge the determination that he is mentally unfit for police duty” it violated his due process rights pursuant to the United States Constitution. “In order to satisfy due process requirements, defendants must…provide to Bauschard with notice of the evidence underlying the conclusion of mental unfitness and a hearing in which to controvert that evidence and defendants’ reasons for placing him on unpaid leave of absence.”

Breece v. Alliance Tractor-Trailer Training II, Inc., (1993) 824 F. Supp. 576 (9th Cir. 1993)

“The Americans with Disabilities Act . . . forbid courts from requiring a fundamental alteration in a defendant’s program to accommodate a handicapped individual.” Nothing in ADA requires an entity to accommodate an individual “where such individual poses a direct threat to the health or safety of others.” The finding of the direct threat requires “individualized inquiry.”

Flynn v. Sandahl (1995) 58 F.3d 283

The plaintiff, Wesley Flynn was a corrections officer in the State of Illinois. Several of his co-workers had complained that he had threatened them with physical harm and as a result the Warden instructed Flynn to undergo a psychiatric examination. Flynn refused to obey the order, which was given to him originally over the telephone and later by letter, arguing that it was a violation of his right to privacy and procedural due process. Flynn was noticed for termination on the charge of insubordination and he responded by filing an action under 42 USC Section §1983.

Subsequently, when Flynn received the actual Notice of Termination he applied to the District Court for a Temporary Restraining Order. The court granted his relief based on the conclusion that Flynn’s due process rights had been violated because the employer did not provide him with a hearing at which time he could challenge the priority of the psychiatric examination. Flynn had been given the opportunity to meet with his employer and discuss the complaints against before any action was taken, but Flynn had refused.

The court states that Flynn’s due process rights were not violated when Flynn was ordered to submit to a psychological evaluation. There was no taking of any property from him nor, said the court, “...is there anything to support the assertion that the results of the examination would have had an adverse effect on Flynn’s job status.” Flynn argued, “... that the order to take a psychiatric examination attached a stigma to his reputation which in turn triggered the protections of due process”. The court responded by stating that, “... injury to reputation alone, apart from the deprivation of property or liberty, is insufficient to trigger the protections of due process”.

As to his claim that the psychiatric examination violated his right of privacy, the court referred to a previous decision involving a school principal required to submit to a psychiatric examination. That court recognized that an individual might have a right to not have personnel matters disclosed, however, a “privacy right... must often give way to consideration of public interest”. The court further stated, “... requiring a teacher to submit to a psychiatric examination is justified where the school has reason to believe that the teacher poses a threat to students under his supervision.”

As to the Flynn matter, the court in referencing this school case stated, “we need not decide whether the order requiring a psychiatric examination violated Flynn’s right to privacy because even if it did, we agree with the First Circuit that this right must give way to consideration of the public interest. “... [C]orrectional officers... must be able to depend upon one another to carry out their duties and protect each other in the event there is threat to their safety or the safety of the inmates. It is undisputed that (the employer) had received complaints from Flynn’s peers that he had threatened them with physical harm. On these facts, we think that the state demonstrated a justifiable basis for requiring the psychiatric examination.”

Siefken v. Village of Arlington Heights, Ill., (1995) 65 F.3d 664 (7th Cir. 1995)

A probationary police officer who was discharged after experiencing severe diabetic reactions while on duty could not state a cause of action under the Americans with Disability Act. An employee who knows that he or she is afflicted with a controllable disability needs no accommodation from an employer. Additionally, the employee fails to meet the employer’s legitimate job expectations if that employee fails to control his or her disability. “ADA does not erect an impenetrable barrier around the disabled employee, preventing the employer from taking any employment action vis-à-vis the employee.”

Pettus v. Cole, (1996) 49 Cal. App. 4th 402, 1996 Cal. App. Lexis 858, 57 Cal.Rptr.2d 46, 12 IER Cases (BNA) 74.

An employee who had applied for long term disability was required to submit to a psychiatric evaluation by the employer (DuPont) in order to obtain disability leave. Two psychiatrists, retained by the employer, evaluated the employee and provided the employer with detailed reports of their psychiatric examinations identifying very personal information, without written authorization from the employee. Based upon that information, the employer demanded that he participate in an inpatient alcohol treatment program before returning to work and terminated his employment after he refused to comply. Pursuant to the state law of California, Civil Code §56.10, information which could be disclosed to the employer, by its own doctor, is limited in scope, absent written waiver by the employee.

The court held that a doctor patient relationship existed between the employee and the employer’s doctor despite the fact that no treatment was provided and no medical advice given. The court stated that, “[w]e do agree, however, that the traditional doctor/patient relationship with a host of concomitant duties created by such a relationship is not established between the Appellant and the Respondent psychiatrist.” The court went on to state that, “Pettus, however, does not rely on common law theories of negligence or medical malpractice, rather, he is seeking to enforce a duty of confidentiality contained in the Confidentiality of Medical Information Act (CMIA) Civil Code §56.10. The court pointed out, “that it is undisputed that Dr. Cole’s meeting generated highly sensitive medical information which was subsequently reported to DuPont (the employer)” and held that, for purposes of this statute, Pettus was clearly “a patient.”

Although Pettus put his mental condition at issue by requesting the paid medical leave, and the employer had a right to know whether in fact Pettus was disabled and whether it was work related, “... the detailed psychiatric information DuPont requested and obtained from Drs. Cole and Unger and ultimately used to make adverse personnel decisions about Pettus, was far more than the employer needed to accomplish its legitimate objective.”

It was noted that during the testimony, the physician witnesses who testified said that it was not customary among California psychiatrists to transmit the full detailed report to the employer without the employee’s consent. The court held that is was reasonable on Pettus’ part to expect that Drs. Cole and Unger, “... would maintain the confidentiality of his discussions with them, excepting so far as DuPont needed their opinions as to whether he was disabled, i.e., whether he had “functional limitations” that entitled him to leave from work for medical reasons or limit his fitness to perform his present employment. It is difficult to image the clearer expression of broadly based and widely accepted community norms.”

Finally, the court addressed the use of the information by DuPont in requiring Pettus to receive medical treatment for what they believed was his alcohol addiction. “... [E]mployers do not have a cognizable interest in dictating a course of medical treatment for employees who suffer non-industrial injuries. That is a matter for the employees to decide in consultation with their own health care providers -- medical professionals who have their patient’s best interest at heart.”

The court also pointed out that although employers have a legitimate concern about workplace safety the mere fact that an employee may become angry and resentful towards a co-worker does not entitle the employer to the type of detailed report provided by the doctors in this case. “If Pettus had indeed posed a danger of serious violence (to another employee) or any other identifiable DuPont employee, (the doctors) were at all times free to disclose that fact to the possible victim - but only that fact.” That was apparently not the concern in this case.

The court articulated that, “[t]hat Pettus had a cognizable interest in maintaining the privacy of the detailed medical information he conveyed to Drs. Cole and Unger - at least those portions of the information above and beyond what was necessary to evaluate whether he was disabled within the meaning of DuPont’s short term disability policy.” Additionally, “Pettus had an autonomy privacy interest in making intimate personal decisions about an appropriate course of medical treatment for his disabling stress condition, without undue intrusion or interference from this employer.”

Yin v. State of California, (9^th Cir. 1996) 95F.3d 864

A state employer can compel an employee with a prolonged history of absenteeism and illness to undergo a fitness for duty medical examination despite the fact that a disability could be disclosed by the examination. The Americans with Disabilities Act (ADA) “provides that employers cannot require an employee to submit to medical examinations for the purpose of determining a disability unless the examination is shown to be job-related and consistent with business necessity. There was no question that the State’s request for Yin to submit to a medical exam was job-related.”

Porter v. United States Alumoweld, (1996) 125F.3d 243

The Court held that there is no violation of the ADA where employee who refused to undergo a medical evaluation to determine his fitness to return to work was discharged. The Court also stated “if a worker has an on-the-job injury which appears to affect his/her ability to do essential job functions, a medical examination or inquiry and is job-related and consistent with business necessity.”

Ahern v. O’Donnell, (1997) 109 F.3d 809

Based on messages left on a woman’s telephone answering machine, which were somewhat bizarre and implied that the caller had engaged in killing someone, the caller, a member of the University police force, was seized for involuntary hospitalization, pursuant to state procedures concerning emergency situations. Subsequent to the involuntary admission to the psychiatric facility the plaintiff was terminated from his job as a University police officer. Plaintiff sued pursuant to Section 1983 seeking damages for a variety of alleged civil rights violations and common law torts.

After being informed of this threatening message by the recipient of the call, a Captain with the University Police attempted to contact the defendant’s consulting psychologist in order to get an expert opinion as to whether or not the caller presented an immediate threat to anyone and to ask her advice and guidance. Ultimately, the psychologist advised the Captain that the caller might be homicidal or suicidal and should be evaluated by a mental health professional. After being involuntarily committed, the plaintiff remained in the hospital for twelve (12) days. Subsequently a hearing was conducted regarding his continued fitness for duty and he was ultimately terminated from his employment for conduct unbecoming an officer. The arbitrator found that evidence clearly established that the plaintiff had made the harassing calls and there was just cause for termination. Ahern subsequently filed the present lawsuit.

The trial court basically found on all counts for the University and the United States Court of Appeals upheld. It was cited that, “[t]he district court first found that Ahern had not been seized as to implicate the Fourth Amendment because he had originally agreed to go ... for psychiatric evaluation.” Additionally, the district court found, “that the officers had reasonably treated the situation as an emergency creating a likelihood of serious harm by reason of mental illness, and acted consistently with Massachusetts law... and the due process clause of the 14th Amendment.”

Furthermore, the court ruled, “... in any case, the UNV Defendants were entitled to qualified immunity and on the state law claims (the consulting doctor) and UNV officers were protected...” by Massachusetts law. “This provides for immunity from civil rights suits for, inter alia, qualified psychologists and police officers who act pursuant to the provisions of Massachusetts General Laws Chapter 1, 2, 3.”

The court recognizes that the state has a legitimate interest in protecting the community as well as individuals from harm caused by mentally ill persons. Nonetheless, “because the seizure of a person for an emergency mental health evaluation raises concerns that are closely analogized to those implicated by a criminal arrest, and both are equally intrusive, we conclude that the “probable cause” standard applies here....”

“Under the circumstances provided in this case, and applying this standard, we find that the undisputed evidence demonstrates that the officers had probable cause to believe that Ahern made the calls to Kate Igor and that in view of the content of the tapes and Ahern’s past behavior, Ahern needed to be evaluated by a mental health professional as soon as possible in order to determine whether he might be dangerous by reason of mental illness.”

Houck Jr. v. City of Prairie Village, (1997) 978 F. Supp. 1397

Following an altercation with his wife, and his firing a gun in the bedroom, plaintiff’s wife called 911 and the police responded. The plaintiff confronted the police and physically pushed one of the officers off the steps of the house. The plaintiff was arrested and based upon his behavior he was booked into the county detention facility. There was an awareness of prior mental problems and hospitalization but there is no indication that he was taken for any treatment or evaluation before being booked. Subsequently an internal affairs investigation was conducted regarding the incident at the home and it was recommended that the officer be terminated from employment.

Plaintiff claimed that his firing was discriminatory because his alleged misconduct was caused by his psychological disability. The court held that “[a] person who commits a criminal act as a result of a disabling condition is not excused from the employment consequences of the criminal act because of a disability.”

White v. City of Boston, (1997) 428 Mass. 250, 700 N.E.2d 526, 1998 Mass. Lexis 536.

Plaintiff police officer sued the City of Boston for violation of the American with Disabilities Act (ADA), 42 U.S.C.S. section 12112, the Federal Rehabilitation Act, 29 U.S.C.S. section 794, and Mass. Gen. Laws ch. 151B, by requiring him to submit to medical examination prior to his reinstatement.

The Court held that the police department did not violate the ADA nor the Federal Rehabilitation Act by requiring the officer to submit to medical exams. The Court found that the City “knew that White [the officer] had been disabled and was justified in requiring the exams to determine whether or not his disabilities would prevent him from performing the duties of a police officer.” Further “the City followed its departmental procedures in administering the exams and these exams were warranted in light of the plaintiff’s work history on the police force. The Court concluded that “the City knew that the plaintiff [the officer] had been physically disabled and had also had psychological difficulties, and the medical and psychological exams were necessary to determine whether the plaintiff could reasonably, safely and skillfully perform the essential functions of a police officer.”

Brown v. Chicago Park District, (1998) 296 Ill. App. 3d 867

Where police department’s policies require that a supervisor provide a written basis for requesting a fitness-for-duty test, and the police department fails to do so, an officer cannot be found insubordinate for failing to submit to a fitness-for-duty test.

Miller v. City of Springfield, (8^th Cir. Mo. 1998) 146 F.3d 612

Plaintiff had been a police officer with the Pasadena, Texas Police Department for 10 years. After moving to Springfield, Missouri she applied to the Springfield Police Department for employment as a police officer. She passed the physical agility tests but scored above normal depression on the MMPI-2, a psychological test which is designed in part to measure depression. Based upon the results of the MMPI-2 she was denied employment as a police recruit and she filed the instant lawsuit. Plaintiff claimed that the City treated her as disabled and therefore violated American’s With Disabilities Act (ADA) even though she is not disabled.

The court stated that plaintiff “...presented no evidence that the defendants regarded (her) as disabled in any manner.” At that time, the court pointed out, she was already employed by the City as a dispatcher and continued in that employment for approximately one year after being turned down as a candidate for police officer. The court concluded that, “Miller is not disabled under the Act. She therefore cannot base a claim of discrimination on this regulation because she was not screened out on the basis of any disability. In any event, we easily conclude that appropriate physiological screening is job related and consistent with business necessity where the selection of individuals to train for the position of police officer is concerned.” (Emphasis added.)

U.S. v. Kaczynski, (1998) 154 F.3d 903

Ted Kaczynski, the man known as the “Unabomber” was required by court order to submit to a psychiatric examination in order to determine whether he was competent to stand trial. After a psychiatrist examined him, as well as his mother and brother, a 47 page report was submitted to the court with the conclusion that Kaczynski was competent to stand trial. Subsequently, various media moved to unseal the psychiatric report raising both the common law and the First Amendment as justification to access the judicial proceeding documents. Kaczynski opposed the motion on privacy grounds. The court ordered the release of portions of the report after redacting sections that had no relation to the issue of competence or his motivation for committing these crimes. The vast majority of the report was unsealed and released to the press.

The Ninth Circuit held that the right of the public to access the defendant’s private psychiatric report outweighed his right of privacy. The Court stated that, “...the media made the necessary threshold showing. It established that disclosure of Kaczynski’s psychiatric report would serve the ends of justice by informing the public about the courts competency determination and Kaczynski’s motivation for committing the Unabomber crimes.

Garner v. Gwinnett County, (N.D. Ga.1999) 1999 U. S. Dist. Lexis 6370, 9 AD Cases (BNA) 1596

Plaintiff police officer experienced job-related stress and consulted a psychologist. Plaintiff told the doctor that he was “tired and angry, hated work, and had suicidal thoughts.” The doctor referred him to another physician to “determine whether plaintiff was fit for duty as a police officer.” Plaintiff also expressed to the second doctor that he had thoughts of killing members of the police department. Both doctors recommended that Plaintiff be given a thirty (30) day leave of absence. After plaintiff terminated his therapy, Plaintiff’s captain placed him on leave and directed him to undergo a fitness for duty evaluation by another therapist. The third therapist determined that plaintiff was “burned out and should not be on the street carrying a gun.” However a fourth therapist determined that plaintiff was fit for duty.

Thereafter plaintiff requested and was denied his request to return to active status. Instead he was offered a position with Animal Control. When plaintiff refused to follow a direct order to take the oath required for the position, he was terminated for insubordination. Plaintiff then filed suit alleging a demotion and firing had occurred based on his mental illness in violation of the ADA.

The Court held that the police department did not violate the ADA. The Court stated “defendant had competent medical evidence that plaintiff posed a threat to himself and to others.” The Court further stated “the ADA did not require defendant to ignore this information, rely on the conflicting medial opinions of plaintiff’s therapists, and take the risk that plaintiff would injure his co-workers or a member of the public once reinstated.” The Court concluded “it would have been reckless to reinstate an employee defendants perceived to pose a threat to the community.”

Watson v. City of Miami Beach, (1999) 177F.3d 932

A police officer filed suit alleging violation of the ADA because the police department relieved him of his duties pending a fitness for duty examination and ordered him to a complete fitness for duty examination. The officer alleged that because other officers regarded as paranoid, such a description qualified as a mental impairment under the ADA.

The Court held that the officer was not an individual with a disability under the ADA and the fitness for duty and tuberculosis examinations were job-related and consistent with business necessity. The Court stated “in any case where a police department perceives an officer to be even mildly paranoid, hostile, or oppositional, a fitness for duty examination is job related and consistent with business necessity.” The Court further stated “ police departments place armed officers in positions where they can do tremendous harm if they act irrationally and the ADA does not , indeed cannot, require a police department to forego a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.” The Court concluded that the “City had good cause for concern as to whether Watson [the officer] was fit to be a police officer.”

Davis-Durnil v. Village of Carpentersville, (2001) 128 F. Supp. 2d 575

The Court held that the City’s act of placing plaintiff on administrative duty, while allowed her to retain her title and benefits and promptly arranging a psychological exam for her and returning her back to patrol once she was determined fit for duty did not violate the ADA. Plaintiff was placed on administrative duty after she was shot by a suspect and suffered anxiety attacks.

Conrad v. Board of Johnson, (2002) 237 F. Supp. 2d 1204

The Court held the following:

Generally speaking, the Americans with Disabilities Act (ADA), 42 U.S.C.S. § 12111 et seq., prohibits employers from inquiring as to whether an employee has a disability or inquiring as to the nature and severity of any disability. 42 U.S.C.S. § 12112(d) (4) (A). This prohibition is intended to prevent inquiries of employees that do not serve a legitimate business purpose. An employer is allowed, however, to make medical inquiries of employees in certain situations. A covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity. 29 C.F.R. § 1630.14(c). A covered entity may make inquiries into the ability of an employee to perform job-related functions. 29 C.F.R. § 1630.14(c). The Equal Employment Opportunity Commission interprets this regulation as permitting employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. 29 C.F.R. pt. 1630, app. § 1630.13(b). An employer’s request that an employee undergo a medical examination must be supported by evidence that would cause a reasonable person to inquire as to whether an employee is still capable of performing his job. These rules apply to psychiatric and mental evaluations as well as medical examinations.

Smith v. Plano, (2002) 2002 U.S. Dist. Lexis 12642

The psychotherapist-patient privilege does apply to a fitness for duty evaluation, “it is limited to circumstances where the recommendations of the doctors are communicated to the patient’s employer in general terms, not including any specific diagnosis or clinical observations.” “If it is known that privileged information will be given to those other than the doctor and the patient, the privilege will not survive.

In this case the officer claimed such a privilege even though he was aware and consented to the information being shared with the Chief of Police. The Court also stated “the fact that an individual was directed to undergo a fitness for duty evaluation or face disciplinary action does not destroy the voluntariness of any waiver of privilege.”

California Government Code

§ 56.10. Authorization for disclosure

(a) No provider of health care, health care service plan, or contractor shall disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c).

(b) A provider of health care, a health care service plan, or a contractor shall disclose medical information if the disclosure is compelled by any of the following:

(1) By a court pursuant to an order of that court.

(2) By a board, commission, or administrative agency for purposes of adjudication pursuant to its lawful authority.

(3) By a party to a proceeding before a court or administrative agency pursuant to a subpoena, subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any provision authorizing discovery in a proceeding before a court or administrative agency.

(4) By a board, commission, or administrative agency pursuant to an investigative subpoena issued under Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code.

(5) By an arbitrator or arbitration panel, when arbitration is lawfully requested by either party, pursuant to a subpoena duces tecum issued under Section 1282.6 of the Code of Civil Procedure, or any other provision authorizing discovery in a proceeding before an arbitrator or arbitration panel.

(6) By a search warrant lawfully issued to a governmental law enforcement agency.

(7) By the patient or the patient’s representative pursuant to Chapter 1 (commencing with Section 123100) of Part 1 of Division 106 of the Health and Safety Code.

(8) By a coroner, when requested in the course of an investigation by the coroner’s office for the purpose of identifying the decedent or locating next of kin, or when investigating deaths that may involve public health concerns, organ or tissue donation, child abuse, elder abuse, suicides, poisonings, accidents, sudden infant death, suspicious deaths, unknown deaths, or criminal deaths, or when otherwise authorized by the decedent’s representative. Medical information requested by the coroner under this paragraph shall be limited to information regarding the patient who is the decedent and who is the subject of the investigation and shall be disclosed to the coroner without delay upon request.

(9) When otherwise specifically required by law.

(1) The information may be disclosed to providers of health care, health care service plans, contractors, or other health care professionals or facilities for purposes of diagnosis or treatment of the patient. This includes, in an emergency situation, the communication of patient information by radio transmission or other means between emergency medical personnel at the scene of an emergency, or in an emergency medical transport vehicle, and emergency medical personnel at a health facility licensed pursuant to Chapter 2 (commencing with Section 1250) of Division 2 of the Health and Safety Code.

(2) The information may be disclosed to an insurer, employer, health care service plan, hospital service plan, employee benefit plan, governmental authority, contractor, or any other person or entity responsible for paying for health care services rendered to the patient, to the extent necessary to allow responsibility for payment to be determined and payment to be made. If (A) the patient is, by reason of a comatose or other disabling medical condition, unable to consent to the disclosure of medical information and (B) no other arrangements have been made to pay for the health care services being rendered to the patient, the information may be disclosed to a governmental authority to the extent necessary to determine the patient’s eligibility for, and to obtain, payment under a governmental program for health care services provided to the patient. The information may also be disclosed to another provider of health care or health care service plan as necessary to assist the other provider or health care service plan in obtaining payment for health care services rendered by that provider of health care or health care service plan to the patient.

(3) The information may be disclosed to any person or entity that provides billing, claims management, medical data processing, or other administrative services for providers of health care or health care service plans or for any of the persons or entities specified in paragraph (2). However, no information so disclosed shall be further disclosed by the recipient in any way that would be violative of this part.

(4) The information may be disclosed to organized committees and agents of professional societies or of medical staffs of licensed hospitals, licensed health care service plans, professional standards review organizations, independent medical review organizations and their selected reviewers, utilization and quality control peer review organizations as established by Congress in Public Law 97-248 in 1982, contractors, or persons or organizations insuring, responsible for, or defending professional liability that a provider may incur, if the committees, agents, health care service plans, organizations, reviewers, contractors, or persons are engaged in reviewing the competence or qualifications of health care professionals or in reviewing health care services with respect to medical necessity, level of care, quality of care, or justification of charges.

(5) The information in the possession of any provider of health care or health care service plan may be reviewed by any private or public body responsible for licensing or accrediting the provider of health care or health care service plan. However, no patient-identifying medical information may be removed from the premises except as expressly permitted or required elsewhere by law, nor shall that information be further disclosed by the recipient in any way that would violate this part.

(6) The information may be disclosed to the county coroner in the course of an investigation by the coroner’s office when requested for all purposes not included in paragraph (8) of subdivision (b).

(7) The information may be disclosed to public agencies, clinical investigators, including investigators conducting epidemiologic studies, health care research organizations, and accredited public or private nonprofit educational or health care institutions for bona fide research purposes. However, no information so disclosed shall be further disclosed by the recipient in any way that would disclose the identity of any patient or be violative of this part.

(8) A provider of health care or health care service plan that has created medical information as a result of employment-related health care services to an employee conducted at the specific prior written request and expense of the employer may disclose to the employee’s employer that part of the information that:

(A) Is relevant in a lawsuit, arbitration, grievance, or other claim or challenge to which the employer and the employee are parties and in which the patient has placed in issue his or her medical history, mental or physical condition, or treatment, provided that information may only be used or disclosed in connection with that proceeding.

(B) Describes functional limitations of the patient that may entitle the patient to leave from work for medical reasons or limit the patient’s fitness to perform his or her present employment, provided that no statement of medical cause is included in the information disclosed.

(9) Unless the provider of health care or health care service plan is notified in writing of an agreement by the sponsor, insurer, or administrator to the contrary, the information may be disclosed to a sponsor, insurer, or administrator of a group or individual insured or uninsured plan or policy that the patient seeks coverage by or benefits from, if the information was created by the provider of health care or health care service plan as the result of services conducted at the specific prior written request and expense of the sponsor, insurer, or administrator for the purpose of evaluating the application for coverage or benefits.

(10) The information may be disclosed to a health care service plan by providers of health care that contract with the health care service plan and may be transferred among providers of health care that contract with the health care service plan, for the purpose of administering the health care service plan. Medical information may not otherwise be disclosed by a health care service plan except in accordance with the provisions of this part.

(11) Nothing in this part shall prevent the disclosure by a provider of health care or a health care service plan to an insurance institution, agent, or support organization, subject to Article 6.6 (commencing with Section 791) of Part 2 of Division 1 of the Insurance Code, of medical information if the insurance institution, agent, or support organization has complied with all requirements for obtaining the information pursuant to Article 6.6 (commencing with Section 791) of Part 2 of Division 1 of the Insurance Code.

(12) The information relevant to the patient’s condition and care and treatment provided may be disclosed to a probate court investigator engaged in determining the need for an initial conservatorship or continuation of an existent conservatorship, if the patient is unable to give informed consent, or to a probate court investigator, probation officer, or domestic relations investigator engaged in determining the need for an initial guardianship or continuation of an existent guardianship.

(13) The information may be disclosed to an organ procurement organization or a tissue bank processing the tissue of a decedent for transplantation into the body of another person, but only with respect to the donating decedent, for the purpose of aiding the transplant. For the purpose of this paragraph, the terms “tissue bank” and “tissue” have the same meaning as defined in Section 1635 of the Health and Safety Code.

(14) The information may be disclosed when the disclosure is otherwise specifically authorized by law, such as the voluntary reporting, either directly or indirectly, to the federal Food and Drug Administration of adverse events related to drug products or medical device problems.

(15) Basic information, including the patient’s name, city of residence, age, sex, and general condition, may be disclosed to a state or federally recognized disaster relief organization for the purpose of responding to disaster welfare inquiries.

(16) The information may be disclosed to a third party for purposes of encoding, encrypting, or otherwise anonymizing data. However, no information so disclosed shall be further disclosed by the recipient in any way that would be violative of this part, including the unauthorized manipulation of coded or encrypted medical information that reveals individually identifiable medical information.

(17) For purposes of disease management programs and services as defined in Section 1399.901 of the Health and Safety Code, information may be disclosed as follows: (A) to any entity contracting with a health care service plan or the health care service plan’s contractors to monitor or administer care of enrollees for a covered benefit, provided that the disease management services and care are authorized by a treating physician, or (B) to any disease management organization, as defined in Section 1399.900 of the Health and Safety Code, that complies fully with the physician authorization requirements of Section 1399.902 of the Health and Safety Code, provided that the health care service plan or its contractor provides or has provided a description of the disease management services to a treating physician or to the health care service plan’s or contractor’s network of physicians. Nothing in this paragraph shall be construed to require physician authorization for the care or treatment of the adherents of any well-recognized church or religious denomination who depend solely upon prayer or spiritual means for healing in the practice of the religion of that church or denomination.

(d) Except to the extent expressly authorized by the patient or enrollee or subscriber or as provided by subdivisions (b) and (c), no provider of health care, health care service plan, contractor, or corporation and its subsidiaries and affiliates shall intentionally share, sell, use for marketing, or otherwise use any medical information for any purpose not necessary to provide health care services to the patient.

(e) Except to the extent expressly authorized by the patient or enrollee or subscriber or as provided by subdivisions (b) and (c), no contractor or corporation and its subsidiaries and affiliates shall further disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan or insurer or self-insured employer received under this section to any person or entity that is not engaged in providing direct health care services to the patient or his or her provider of health care or health care service plan or insurer or self-insured employer.

See also, Inabnit v Berkson (1988, 5th Dist) 199 Cal. App. 3d 1230, 245 Cal. Rptr. 525.

The trial court did not err in sustaining defendants’ demurrer to a medical malpractice plaintiff’s complaint against a physician who was not a party to the malpractice action and the physician’s medical group, in which plaintiff alleged that the physician’s disclosure of plaintiff’s medical information to an insurer during the course of the malpractice litigation violated the Confidentiality of Medical Information Act (CC § § 56 et seq.). Under the act, a health care provider must hold confidential a patient’s medical information unless the information falls within a statutory exception. The ex parte contact between the physician and the insurer was contemplated under the exception in CC § 56.10(c)(4), which allows a health care provider to disclose medical information without patient authorization to parties that insure or are responsible for defending professional liability. The physician was an associate of the malpractice defendant and was at risk of malpractice exposure, and the insurer insured both physicians. Thus, the physician was entitled to discuss plaintiff’s medical condition with his insurer. This interpretation is supported by the legislative history and other provisions of the act. (Disapproving to the extent each can be read to prohibit all ex parte contacts between a physician and his or her attorneys or insurers: Torres v. Superior Court (1990) 221 Cal.App.3d 181 [270 Cal.Rptr. 401]; Province v. Center f or Women’s Health & Family Birth (1990) 20 Cal.App.4th 1673 [25 Cal.Rptr.2d 667].) Heller v Norcal Mutual Ins. Co. (1994) 8 Cal 4th 30, 32 Cal Rptr 2d 200, 876 P2d 999.

Disclosure to an insurer and employer of an employee’s alcoholism, which a psychiatrist had determined was the basis for the employee’s stress, was not an exception to the requirement that the psychiatrist obtain authorization to disclose the condition as required by CC § 56.10(a) or § 56.10(c)(8). Pettus v Cole (1996, 1st Dist) 49 Cal App 4th 402, 57 Cal Rptr 2d 46.

Disclosure to an insurer and employer of an employee’s alcoholism, which a psychiatrist had determined was the basis for the employee’s stress, was not an exception to the requirement that the psychiatrist obtain authorization to disclose the condition as required by CC § 56.10(c)(8)(B); the disclosure was not a description of functional limitations but was a description of the cause of the employee’s complaints. Pettus v Cole (1996, 1st Dist) 49 Cal App 4th 402, 57 Cal Rptr 2d 46.

In a patient’s suit against her doctor for allegedly disclosing personal and confidential medical information about the patient to the patient’s employer, the trial court properly granted the doctor a directed verdict as the information was nonspecific, CC § 56.16 permitted the doctor to discuss nonspecific information about the patient without her consent, and the patient’s oral request that the doctor refrain from conveying any information to her employer did not comply with the statutory prerequisite to nondisclosure. Garrett v Young (2003, Cal App 2nd Dist) 2003 Cal App Lexis 940.

Because a dentist was concerned with the possibility that a police officer either was, or was at risk of becoming, dependent on prescription drugs, and the subsequent police department investigation was implicitly authorized by a city charter provision and Pen C § 832.5, the communication between the dentist and the police department concerning an incident where the officer demanded prescription drugs was one made in the course of an official proceeding authorized by law and was consequently privileged by CC § 47(b)(3) and lawful under CC § 56.10(c)(14). Shaddox v Bertani (2003, Cal App 1st Dist) 2003 Cal App Lexis 1167.

It is sound public policy to construe CC § 56.10(c)(14) in a way that will not impede voluntary reports of suspected misconduct or unfitness by police, reports whose importance is already recognized and immunized under CC § 47(b)(3). Shaddox v Bertani (2003, Cal App 1st Dist) 2003 Cal App Lexis 1167.

Phrase in CC § 56.10(c)(14) “such as” is not a phrase of strict limitation, but is a phrase of general similitude indicating that there are includable other matters of the same kind which are not specifically enumerated, and the phrase is used in an illustrative, not an exhaustive sense. Subdivision 56.10(c)(14) thus serves as the residuary clause in § 56.10 and legitimizes a myriad of situations the legislature may not have cared to spell out by establishing the principle of permissive disclosure when specifically authorized by law. City charter provisions and Pen C § 832.5 are not excluded from the reach of CC § 56.10(c)(14) because they do not address every means and type of communication that may be used to frame complaints against city police officers, or because they neglect to specify limitations on complaints from specific professionals, and while complaints to law enforcement agencies are voluntary, that fact supplies no basis to distinguish complaints to law enforcement agencies from those made to the Federal Drug Administration, the very example of the kind of disclosures permitted by the legislature in § 56.10(c)(14). Shaddox v Bertani (2003, Cal App 1st Dist) 2003 Cal App Lexis 1167.

Vita

Martin J. Mayer

3777 North Harbor Boulevard

Fullerton, California 92835

(714) 446-1400 Telephone

(714) 446-1448 Facsimile

E-mail: mjm@jones-mayer.com

The Law Offices of Jones & Mayer is located in the City of Fullerton. The firm basically limits its practice to representing cities, counties and special districts on a variety of legal issues. Martin Mayer limits his practice to representing cities, counties and the State as legal advisor to their Chiefs of Police or Sheriffs and in that capacity represents approximately seventy agencies throughout the California. In addition, the firm serves as the City Prosecutor for seven municipalities. Prior to establishing his original law firm, Mr. Mayer worked with the League of California Cities for four years as Director of its Criminal Justice Planning Unit.

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