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Mark A. Grant v. United States of America

October 22, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


This action arises from a May 7, 2006 automobile accident involving plaintiff Mark A. Grant, a military veteran who suffered injuries as a result of that accident, and third-party motorists. Plaintiff's claims in this case primarily concern alleged violations of his privacy rights stemming from unauthorized disclosure of plaintiff's private health information by a United States Department of Veterans Affairs ("VA") employee to one of the third-party motorists' insurer, Mercury Casualty Company ("Mercury"), in the course of seeking recovery of costs from Mercury for the medical care that the VA provided to plaintiff related to the accident.*fn1

Presently pending before the court is remaining defendants United States and the VA's motion for summary judgment and judgment on the pleadings, originally noticed for hearing on August 30, 2012. (Dkt. No. 80.) In an August 17, 2012 order, the court rescheduled the hearing on the motion for October 18, 2012, and set a special briefing schedule, whereby plaintiff's opposition or statement of non-opposition to the motion was to be filed by August 30, 2012, and whereby defendants were to file any reply brief by September 6, 2012. (Dkt. No. 82.)*fn2

Thereafter, plaintiff filed a "release of all claims" (Dkt. No. 83), a "request for judicial notice of an adjudicative fact" (Dkt. No. 85), and a "pretrial statement" (Dkt. No. 86) on August 17, 2012; an objection and request that defendants' declarations in support of the motion for summary judgment be stricken for lack of authentic signature (Dkt. No. 84) on August 21, 2012; a "response/notice of motion and motion to dismiss" (Dkt. No. 87) on August 29, 2012; and a "notice of motion and motion to dismiss" (Dkt. No. 88) on August 31, 2012.*fn3 Finally, on September 6, 2012, defendants filed a reply brief in support of their motion for summary judgment and judgment on the pleadings, which also responded to plaintiff's above-mentioned motions and filings. (Dkt. No. 90.)

At the October 18, 2012 hearing, plaintiff represented himself, and attorney Yoshinori Himel appeared on behalf of defendants. The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record. For the reasons that follow, the undersigned recommends that plaintiff's "motions to dismiss" be denied and that defendants' motion for summary judgment and judgment on the pleadings be granted.


The operative facts are primarily taken from defendants' statement of undisputed facts in support of the motion for summary judgment, including the declarations and other evidence cited therein. (Dkt. No. 80-1.)*fn4

As will be discussed in detail below, plaintiff failed to file an opposition to defendants' motion addressing defendants' proposed undisputed facts or any of defendants' legal arguments for summary judgment and judgment on the pleadings. Furthermore, plaintiff failed to comply with Local Rule 260(b)'s requirement to "reproduce the itemized facts in the Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial." E.D. Cal. L.R. 260(b). Although the court liberally construes the pleadings and filings of persons proceeding without counsel, they are required to abide by the court's Local Rules and the Federal Rules of Civil Procedure, and failure to comply with these rules "may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." E.D. Cal. L.R. 110, 183(a).

Even if the court, in light of plaintiff's pro se status, may ordinarily have been inclined to grant plaintiff an opportunity to file a supplemental opposition that complies with E.D. Cal. L.R. 260(b), the court finds it unnecessary in this case. In their notice of motion, defendants voluntarily provided plaintiff with a detailed warning, analogous to the type of warning required in prisoner pro se cases by Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), regarding the requirements to oppose summary judgment under Rule 56 of the Federal Rules of Civil Procedure and Local Rules 230 and 260. Therefore, plaintiff was well aware of the applicable procedural rules and requirements. As discussed below, plaintiff elected to forego a substantive response to defendants' motion and instead sought dismissal of his own case on different grounds. Accordingly, for purposes of the motion for summary judgment, the court accepts defendants' evidence and proposed undisputed facts, outlined below, as the truth.

Under the Medical Care Recovery Act, 42 U.S.C. §§ 2651-53 ("MCRA") and 38 U.S.C. § 1729, the VA asserts claims for costs of health care furnished by the VA to VA beneficiaries under circumstances indicating a third party's legal liability.*fn5 (Defendants' Statement of Undisputed Facts Under L.R. 260(a), Dkt. No. 80-1 ["SUF"] 1; Declaration of Suzanne C. Will, Dkt. No. 80-5 ["Will Decl."] ¶¶ 2, 5.) This collection activity assists with the funding of VA medical care for veterans. (SUF 1; Will Decl. ¶¶ 2, 15.)

In the collection process as it existed in August 2009, when the alleged violation of plaintiff's privacy rights occurred, billing staff at the VA's Health Information Management Service ("HIMS") would initially identify health care events, i.e. treatments or services, that were potentially causally related to a tort, thereby prompting staff at the VA's Regional Counsel's Office to assemble a claim package. (SUF 2-3; Will Decl. ¶¶ 4-8.) The claim package was covered by a claim notice letter and enclosed the medical bills and treatment records for the identified health care events, as well as a summary of the bills. (SUF 3; Will Decl. ¶ 8.) The medical records were included, because third parties often required substantiation of the causal relationship of the tort to the health care event, and the medical records were useful in making a determination of tort-relatedness. (SUF 4; Will Decl. ¶ 9.) To disclose VA medical treatment records in the cost recovery process, the VA relied on "Routine Use number 12" in a System of Records Notice published in the Federal Register, which stated:

Any relevant information may be disclosed to attorneys, insurance companies, employers, third parties liable or potentially liable under health plan contracts, and to courts, boards, or commissions, only to the extent necessary to aid VA in preparation, presentation, and prosecution of claims authorized under Federal, state, or local laws, and regulations promulgated thereunder.

(SUF 6; Will Decl. ¶¶ 11-16.); see also 69 Fed. Reg. 18428-02, 2004 WL 730690 (Apr. 7, 2004). Because a final determination of a health event's tort-relatedness was only made after an interactive process of discussion, negotiation, and possibly litigation among the tort parties, the question of treatment records' tort-relatedness was viewed broadly, in a manner akin to "relevancy to the subject matter." (SUF 5; Will Decl. ¶¶ 17-19.) However, VA staff took steps, such as redaction, to protect more sensitive medical information within medical records as identified by VA staff or by the VA beneficiary. (SUF 7; Will Decl. ¶ 10.)

On August 5, 2009, in an attempt to recover the costs of health care which the VA provided to plaintiff as a result of plaintiff's May 7, 2006 automobile accident, Darrell McDonald, a paralegal in the VA's Regional Counsel's Office, sent a $17,095.69 claim notice and package entitled "Notice of Final Lien Claim" to Mary C. Pickett, an insurance adjuster for Mercury, the insurance company that insured one of the other parties to the automobile accident. (SUF 9-11; Will Decl. ¶¶ 20, 22; Declaration of Darrel M. McDonald, Dkt. No. 80-9 ["McDonald Decl."] ¶¶ 1, 4, 10, Exs. A-C; Declaration of Mary C. Pickett, Dkt. No. 80-8 ["Pickett Decl."] ¶¶ 1-3, 7.) Mr. McDonald knew that plaintiff suffered from #1#,*fn6 a sensitive medical condition, and Mr. McDonald's practice was to redact such information from medical treatment records before including them in a claim package. (SUF 8-9; McDonald Decl. ¶¶ 3, 11.) Although Mr. McDonald redacted several mentions of plaintiff's #1# condition from the records in the claim package sent to Ms. Pickett, he missed and failed to redact a few other references to plaintiff's #1# condition, as well as references to certain medications used to treat #1#. (SUF 9-10; McDonald Decl. ¶¶ 11-16.) At the time of the disclosure, Mr. McDonald was not aware that there was any connection between those medications and plaintiff's #1# condition. (SUF 10-11; McDonald Decl. ¶¶ 13-16.)

Mr. McDonald first learned of problems with the August 5, 2009 claim package when he received a September 17, 2009 letter from plaintiff complaining about the unauthorized disclosure of plaintiff's #1# condition in the claim package. (SUF 11; McDonald Decl. ¶¶ 13-15, Ex. D.) Plaintiff's September 17, 2009 letter stated that the VA should not recover "a single red cent" from the personal injury settlement and insisted that the VA's lien on any proceeds from Mercury be reduced to zero. (SUF 11; McDonald Decl. ¶¶ 17-18, Ex. D.)

Thereafter, Mr. McDonald obtained authorization to settle and compensate plaintiff by waiving the VA's $17,095.69 medical care recovery claim, and to prevent or remedy harm from the disclosure by causing Mercury and Mercury's attorney to relinquish the original and all copies of the medical records containing references to plaintiff's #1# condition. (SUF 12-14; McDonald Decl. ¶¶ 17-26; Will Decl. ¶¶ 22-23.) In a letter to plaintiff dated September 18, 2009, attaching a proposed written release of all claims, Mr. McDonald stated the terms of the potential settlement as follows:

We agree to waive our lien in this matter in exchange for your signed release of all claims against the United States or the Department of Veterans Affairs. This release must be notarized.

We also agree to request that Mercury insurance and their counsel return all medical records to our office and delete all unauthorized medical information from their files. Upon receipt of the signed release of all claims, we will authorize Mercury Insurance to issue payment directly to you with an advisement that we have waived our lien interests in this matter. (SUF 13-14; McDonald Decl. ¶ 21, Ex. E.) Subsequently, in a September 21, 2009 letter to the VA, plaintiff stated:

Mr. Darrell M. McDonald stated that if I sign a Release Of All Claims on behalf of the VA that the VA would release it's [sic] claim to the lien on the proceeds from my settlement. I accepted Mr. Darrell M. McDonald's offer. However that is not enough, I ask that the Veterans Administration take all steps necessary to prevent further dissemination of my #1# records and to order those entities who have received or stored these records on paper or electronically, to destroy these records. I ask that the responsible VA employee or employees are prosecuted.... (SUF 14; McDonald Decl. ¶¶ 22-23, Ex. F.)

No VA employees were ever prosecuted based on the disclosure of plaintiff's medical information, but all originals and copies of plaintiff's treatment records given to Mercury and its counsel were returned to the VA by October 2, 2009. (SUF 14; McDonald Decl. ¶¶ 25-27, Exs. G & H; Will Decl. ¶ 23; Pickett Decl. ¶¶ 7-10.) Plaintiff's treatment records were never distributed to any other party, and Mercury had not actually reviewed plaintiff's medical records, because plaintiff's claim had already been valued above the $15,000 insurance policy limit. (SUF 14; Pickett Decl. ¶¶ 8-10; McDonald Decl. ¶¶ 25-27, Exs. G & H; Will Decl. ¶ 23.) Furthermore, in an effort to improve privacy protection for VA beneficiaries and to avoid inadvertent release of private information, the VA's Regional Counsel's Office directed the VA's HIMS billing staff to cease sending medical records to the Regional Counsel's Office, and to make treatment records available only through a VA Release of Information office, where staff are specially trained in the handling of private records. (SUF 16; Will Decl. ¶ 25; McDonald Decl. ¶¶ 29-30.)

The VA never received a signed written release from plaintiff, and plaintiff ultimately commenced this action against defendants on February 9, 2011. (SUF 15; Will Decl. ¶ 24; McDonald Decl. ¶ 28); see also Dkt. No. 1. The VA considered plaintiff's actions to be a breach of his agreement to settle his privacy claims, and therefore decided to enforce its lien and recover its costs of medical care provided to plaintiff related ...

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