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Washington v. Bio-Medical Applications of Alabama, Inc.

United States District Court, M.D. Alabama, Northern Division

February 16, 2018

JOHN W. WASHINGTON, as next Friend of MAE R. WASHINGTON, Plaintiff,
v.
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a foreign Corporation, Defendant.

          PROTECTIVE ORDER

          TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE

         This matter is pending before the Court on Defendant's Motion for Protective Order (Doc. 36) and Plaintiff's Response. (Doc. 37). The parties have agreed to the entry of the proposed Protective Order with the exception of sections (¶ 3. and ¶6.c.) as contained in the proposed Protective Order. (Doc. 36). After consideration of the arguments of the parties, the Court concludes that neither of the disputed sections is appropriately included in the Order. The Court further concludes that the Protective Order entered herein by the Court balances the privacy rights of the third-party patients without unnecessarily inhibiting Plaintiff's ability to conduct relevant discovery in this case. Accordingly, it is ORDERED that the Motion for Protective Order (Doc. 36) be GRANTED. It is further ORDERED as follows:

         1. For purposes of this Protective Order,

a. “Action” means the above-referenced civil action and all of its appellate proceedings, if any.
b. “Complaint” means the Complaint filed by Plaintiff in this Action.
c. “Covered Entity” means “covered entity” as defined in 45 C.F.R. §160.103.
d. “Third Party Patient” means any patient of Bio-Medical Applications, Inc. d/b/a/ Fresenius Medical Care Tallassee a/k/a Fresenius Kidney Care Tallassee (“FKC”) who was present on the FKC Tallassee treatment floor during the events made the basis of the Complaint on June 2, 2017 and may have been a witness to the events made the basis of the Complaint. The term “Third Party Patient” is specifically defined for purposes of this Protective Order to exclude any other patient of FKC Tallassee who was not present on the FKC Tallassee treatment floor during the events made the basis of the Complaint on June 2, 2017.
e. “PHI” means “protected health information” as defined in 45 C.F.R. §160.103.

         2. The HIPAA regulations allow the use and disclosure of PHI for judicial proceedings in response to “an order of a court . . . provided that the covered entity discloses only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i).

         3. Under 45 C.F.R. § 164.512(e)(1)(i), FKC Tallassee, as a Covered Entity, is AUTHORIZED and ORDERED to disclose to Plaintiff the identities and las known mailing addresses of the Third Party Patients.

         4. The Third Party Patients may have witnessed the events on June 2, 2017 made the basis of this action. As such, their identities are relevant to this Action as potential fact witnesses regarding the events of June 2, 2017. No. aspect of the Third Party Patients' PHI and/or medical care or treatment received at FKC Tallassee are relevant, discoverable, or admissible in this Action.

         5. As satisfactory safeguards under the hipaa REGULATIONS AND IN ORDER TO ABIDE BY THE PARAMETES OF THE Alabama Medical Liability Act, including the provisions of Ala. Code §6-5-551, the Court hereby ORDERS that Plaintiff and Defendant are:

a. PROHIBITED from (i) asking the Third Party Patients for any of their PHI, (ii) seeking information containing the Third Party Patients' PHI, (iii) producing any documents that contain the Third Party Patients' PHI, and (iv) using any information or documents that contain the Third Party Patients' PHI in this Action;
b. PROHIBITED from (i) asking the Third Party Patients for any details of their care or treatment at FKC Tallassee, (ii) seeking information regarding details of the Third Party Patients' care or treatment at FKC Tallassee, (iii) producing any documents that contain details regarding the Third Party Patients' care or treatment at FKC Tallassee, and (iv) using any information or documents that contain ...

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