United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
A. EIFERT UNITED STATES MAGISTRATE JUDGE.
is the Motion of Brayman Construction Corporation to Compel
the Complete File of Darrell Fint from Jennifer Myers, Ph.D.
(ECF No. 168). Plaintiff filed a response to the Motion,
indicating that he does not object to production of his
entire file; however, Dr. Myers has declined to honor his
written authorization consenting to its release. (ECF No.
173). Therefore, Plaintiff does not have possession or
control of the file and cannot produce it. For that reason,
Plaintiff asks that the Motion be denied.
to Plaintiff, at the time of Dr. Myers's deposition, she
allowed the parties to review Plaintiff's file, but
refused to produce a copy of same based upon her belief that
she is prohibited from releasing certain records under the
ethical guidelines of the American Psychiatric Association.
In particular, Dr. Myers testified that she is precluded from
producing test data and psychotherapy notes. Plaintiff denies
playing any role in Dr. Myers's refusal to supply his
clinical records, indicating that he is at a loss as to what
else he can do to expediate production of his complete file.
Unpersuaded by Plaintiff's protestations, Brayman
Construction Corporation (“Brayman”) has filed a
reply accusing Plaintiff of obstructing and delaying
discovery. (ECF No. 176).
Thursday, January 3, 2019, the parties appeared, by counsel,
for a hearing on the motion. Having reviewed the arguments of
counsel, the deposition transcript of Dr. Myers, and the
relevant statutes, regulations, and ethical standards, the
undersigned GRANTS the Motion to Compel. The
undersigned finds that Plaintiff has fulfilled his obligation
to take reasonable steps to obtain a complete copy of his
psychological records from Dr. Myers and should not be held
responsible for her refusal to release them. Therefore, the
Court is not directing the order to Plaintiff. Instead, given
that Dr. Myers has control, custody, and possession of the
complete file, the Court ORDERS Dr. Myers
within ten (10) days of receipt of this
Order to produce a copy of her entire chart pertaining to
Plaintiff Darrell Fint to counsel for Brayman. Brayman shall
provide a copy of this Order to Dr. Myers, shall reimburse
Dr. Myers the cost of reproducing the file, and shall provide
Plaintiff's counsel with a copy of the documents received
from Dr. Myers. The documents in the file shall be subject to
the Protective Order already entered in this case. (ECF No.
April 16, 2018, Dr. Jennifer Myers, a psychologist at
Mountaineer Psychological Services in Morgantown, West
Virginia, performed a one-time evaluation of Plaintiff for
litigation purposes. (ECF No. 168-6 at 67-68). Thereafter,
Brayman sent Dr. Myers a formal written records request,
seeking a copy of her entire file pertaining to Plaintiff,
and enclosing a HIPAA-compliant authorization signed by
Plaintiff consenting to the release of his records. Dr. Myers
issued a report summarizing her evaluation of Plaintiff,
which she provided to Plaintiff's counsel and which was
subsequently produced to Brayman pursuant to Fed.R.Civ.P.
26(a). However, Dr. Myers did not honor the records request
sent by Brayman.
November 13, 2018, the parties appeared at Dr. Myers's
office for her prearranged deposition. Once again, Brayman
requested a copy of the entire file Dr. Myers had in her
possession pertaining to Plaintiff. (ECF No. 168-6 at 38-40).
Dr. Myers allowed the parties' counsel to examine
Plaintiff's chart, which Dr. Myers had brought to the
deposition, but she refused to provide copies of the file.
Dr. Myers explained that her office complied with the ethical
code of the American Psychiatric Association, and that code
instructed psychologists not to release the raw data of
psychological testing due to the potential for
misinterpretation. Instead, psychologists were to provide
only a report of the testing results. In addition, the test
materials underlying the data were copyrighted, and
psychologists were legally bound to honor those copyrights.
Dr. Myers added that her office likewise never released
psychotherapy session notes. She testified that her office
took the position that a report fulfilled the requirements of
any subpoena or court order for a patient's file.
(Id. at 39-42). Accordingly, from the deposition
testimony, it appears that the parties received a report
generated by Dr. Myers that was based upon and incorporated
information from the records contained in Plaintiff's
chart at Mountaineer Psychological Services, but they did not
receive a copy of the records prepared and collected by Dr.
Myers that comprise Plaintiff's chart. The reasons given
by Dr. Myers for refusing to copy and provide these records,
notwithstanding Plaintiff's written authorization
consenting to their production, are that (1) psychotherapy
session notes are never released by her office; and (2)
psychological test data cannot be produced because of ethical
rules prohibiting the disclosure of that information.
Standards Governing the Release of Mental Health
State of West Virginia, the disclosure of mental health care
records is governed by federal and state law. Under the
federal Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”), Pub. L. 104-191, an
individual's mental health care records constitute
protected health information subject to security and privacy
standards. See 45 C.F.R. §164.102 et.
seq. Most mental health care records are treated like
any other health care record under HIPAA. However,
“psychotherapy notes” receive additional
protection; indeed, unlike the access given to other medical
records, an individual does not have the automatic right to
access his own psychotherapy notes. 45 C.F.R.
§164.524(a)(1)(i). Under certain circumstances-such as
when a treating mental health care professional believes that
access to the notes is reasonably likely to endanger the life
or physical safety of the individual or another person-the
individual may be denied permission to review his
psychotherapy notes. 45 C.F.R. §164.524(a)(3)(i).
Psychotherapy notes are defined narrowly under HIPAA,
including only those notes made by a mental health care
provider that document or analyze the contents of
conversations occurring during counseling sessions, and that
are separated from the rest of the individual's record.
Psychotherapy notes expressly do not include
“medication prescription and monitoring, counseling
session start and stop times, the modalities and frequencies
of treatment furnished, results of clinical tests, and any
summary of the following items: Diagnosis, functional status,
the treatment plan, symptoms, prognosis, and progress to
date.” 45 C.F.R. §164.501. Notably, even with the
added protection given to psychotherapy notes, HIPAA allows
their disclosure to a third-party with a valid authorization,
45 C.F.R. §164.508(a)(1), and without an authorization
when the disclosure is required by law. 45 C.F.R.
Virginia Code § 16-29-1 also addresses the release of
health care records, including records documenting
“treatment for psychiatric or psychological
problems.” With respect to mental health care records,
a treatment provider is only required to supply “a
summary of the record” to a patient “following
termination of the treatment program.” W.Va. Code
§ 16-29-1(a)(1). Based on the language of this statute,
psychotherapy session notes need never be provided in
response to a patient's request or authorization.
Nonetheless, the statute clarifies in paragraph (c) that the
Code section “does not apply to records subpoenaed or
otherwise requested through court process.” W.Va. Code
§ 16-29-1(c). Thus, the West Virginia Legislature
acknowledges that mental health care records, in addition to
a report, may be obtained through the judicial process.
West Virginia Code § 27-3-1 discusses the
confidentiality of communications and information obtained
during the course of mental health care. The statute provides
that such information shall not be disclosed unless it falls
within one of seven exceptions, including inter alia
“[p]ursuant to an order of any court based upon a
finding that the information is sufficiently relevant to a
proceeding before the court to outweigh the importance of
maintaining confidentiality” and “[p]ursuant to
and as provided for under the federal privacy rule of
[HIPAA].” Once again, the West Virginia Legislature
recognizes the need for disclosure when appropriate in legal
respect to ethical guidelines, the American Psychiatric
Association counsels that “[a] psychiatrist may release
confidential information only with the authorization of the
patient or under proper legal compulsion. … When the
psychiatrist is ordered by the court to reveal the
confidences entrusted to him/her by patients, he or she may
comply or he/she may ethically hold the right to dissent
within the framework of the law. … In the event that
the necessity for legal disclosure is demonstrated by the
court, the psychiatrist may request the right to disclosure
of only that information which is relevant to the legal
question at hand.” THE PRINCIPLES OF MEDICAL ETHICS
WITH ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY (Am.
Psych. Assoc. 2013). Although not explicit in reference to
psychotherapy session notes, clearly the intent of the
ethical guideline is to encourage professionals to tailor
disclosures of confidential communications to the minimum
necessary to accommodate the professed need for information.
The American Psychological Association has similar
confidentiality principles that similalry are not specific to
psychotherapy session notes, but do counsel that discretion
should be used in the amount of information disclosed. APA
ETHICAL PRINCIPLES OF PSYCHOLOGISTS AND CODE OF CONDUCT (Am.
Psychol. Assoc. 2017) (“APA Ethics Code”) Section
4: Privacy and Confidentiality.
West Virginia, nor HIPAA, provides any special protection for
psychological test data. In fact, HIPAA explicitly excludes
clinical test results from the definition of psychotherapy
notes; thereby, placing test data in the same category as any
other protected health information. Contrary to Dr.
Myers's testimony, the American ...