Los Angeles, CA asked in Federal Crimes and Health Care Law for California

Q: LA hospice fraud. Legal means to discover the identities of individuals. Motion for Court Order statute.

For a medical malpractice case involving fraud, how to make sure authentic identity data is obtained, protected by privacy rights.

Is in-chamber review of privilege log (including privacy right) a mechanism to do it?

If a court order is required, in addition to/or instead of motion for in-chamber review, and motion with the court needed, demonstrating the necessity of the information and its relevance to the case;

which statute defines this process?

1 Lawyer Answer
James L. Arrasmith
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  • Estate Planning Lawyer
  • Sacramento, CA
  • Licensed in California

A: To discover the identities of individuals in a medical malpractice case involving hospice fraud in California, while respecting privacy rights, there are a few key legal mechanisms and statutes to consider:

In-Camera Review: California Evidence Code Section 915 allows for in-camera review (judge's private review in chambers) of information claimed to be privileged. The judge can review a privilege log listing what information is being withheld to determine if the claimed privileges apply. This helps balance the need for relevant evidence with privacy rights.

Court Order for Identity Disclosure: If the identities are necessary for the case, a motion can be filed with the court under California Code of Civil Procedure Section 2031.310, requesting an order compelling disclosure. The motion must demonstrate the information's relevance and importance to the case. The court will weigh the need for the information against privacy concerns.

Confidentiality Orders: Under California Code of Civil Procedure Section 2025.420(b), the court can issue a protective order to keep disclosed private information confidential. This limits who can access it and how it can be used. A stipulated protective order agreed to by the parties can also be submitted for court approval.

Authorization for Release of Medical Information: Per California Civil Code Section 56.11, an individual can authorize disclosure of their own medical information. Obtaining authorizations is one way to access records containing identities without violating privacy laws.

Subpoenas with HIPAA Protections: Under HIPAA (45 CFR Sections 164.512(e)), protected health information can be disclosed in response to a court order or subpoena. The subpoena should include provisions to notify individuals and allow them to object. A qualified protective order to maintain confidentiality is also advisable.

So in summary, an in-camera review is one tool, but a court order compelling disclosure pursuant to CCP 2031.310, along with a strong protective order under CCP 2025.420(b), is likely the primary mechanism to compel disclosure of identities while safeguarding privacy rights in this scenario. Subpoenas in compliance with HIPAA requirements offer an additional avenue. The specific approach depends on the case details, but these are key statutes and methods to consider to obtain the necessary identity information while respecting California privacy laws.

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