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OPPOSITION PAGE 1 OF 25 09-CV-04231 (PR) RS
James Alan Bush
1211 East Santa Clara Avenue #4
San Jose, California 95116
(408) 791-4866
Plaintiff in pro per
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
James Alan Bush,
Plaintiff,
v.
Dr. Dean Winslow, M.D., et al.,
Defendants.
Case No. 09-CV-04231 (PR) RS
PLAINTIFFS OPPOSITION TO DEFENDANTS
MOTION FOR SUMMARY JUDGMENT
[Fed. R. Civ. P. 56(a)]
Judge Richard Seeborg
TO DEFENDANTS DR. DEAN WINSLOW, M.D., EDWARD C. FLORES AND DAVID SEPULVEDA
AND THEIR COUNSEL OF RECORD:
Plaintiff, James Alan Bush, replies to the motion for summary judgment hled and
served by the defendants in this action and show that the defendants are not
entitled to a summary judgment for all the following reasons described herein
this document.
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OPPOSITION PAGE 2 OF 25 09-CV-04231 (PR) RS
TABLE OF CONTENTS
I. RELEVANT FACTS ...............................................................................8
II. ARGUMENT ......................................................................................10
A. A PREPONDERANCE OF EVIDENCE SHOWS THAT THE DEFENDANTS ADMIT TO THE
UNAUTHORIZED AND UNLAWFUL DISCLOSURE OF PLAINTIFFS PRIVATE MEDICAL
INFORMATION ............................................................................11
B. CASE LAW CLEARLY ESTABLISHES THE PLAINTIFFS CONSTITUTIONAL RIGHT TO
PRIVACY IN HIS MEDICAL INFORMATION ..............................................13
C. FEDERAL AND STATE STATUTES SPECIFICALLY PROHIBIT THE DEFENDANTS FROM
THE UNAUTHORIZED DISCLOSURE OF PRIVATE MEDICAL INFORMATION ...............16
1. Defendants are statutorily prohibited from disclosing private
medical information by the Uniform Health-Care Information Act ...16
2. Defendants are also statutorily prohibited from the unauthorized
disclosure of private medical information by the Health Insurance
Portability and Accountability Act (HIPAA) Privacy Rule .............18
3. Defendants invasion of the plaintiffs privacy violated the
California Constitution, Article I, Section 1, because the
defendants conduct impacts on a legally protected privacy
interest of private medical record information, the plaintiff has
a reasonable expectation of privacy, and the defendants invasion
is serious; the defendants have failed to show a competing or
countervailing interest to justify the intrusion ......................19
4. Defendants invasion of the plaintiffs privacy violated the
California Constitution, Article I, Section 1, because the
defendants have failed to show a compelling interest sufhcient to
justify the unauthorized disclosure of plaintiffs private medical
information .......................................................................21
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OPPOSITION PAGE 3 OF 25 09-CV-04231 (PR) RS
D. FEDERAL AND STATE PRIVACY LAW AFFORDS A TORT ACTION FOR DAMAGES
RESULTING FROM THE UNLAWFUL DISCLOSURE OF MEDICAL INFORMATION ..........21
1. Defendant Winslow can be held liable for the unauthorized
disclosure of private medical information per federal case law ...21
2. Defendants Flores and Sepulveda can also be held liable as a
third-party for the unauthorized disclosure of private medical
information per federal case law ...........................................23
3. California state law entitles the plaintiff to recover damages for
a violation of medical information privacy rights .....................23
IV. CONCLUSION ...................................................................................25
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OPPOSITION PAGE 4 OF 25 09-CV-04231 (PR) RS
TABLES OF AUTHORITIES
CASES
Roberts v. Salano
F.Supp.2d, 2008 WL 4471003 (E.D.Cal.) ........................................................13
Whalen v. Roe
429 U.S. 589, 598-99, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ................................14
Norman-Bloodsaw v. Lawrence Berkeley Lab.
135 F.3d 1260, 1269 (9th Cir. 1998) ..........................................................14
Planned Parenthood of Southern Arizona v. Lawall
307 F.3d 783, 789-90 (9th Cir. 2002) ........................................................14
Moore v. Prevo
379 Fed.Appx. 425, 2010 WL 1849208 (C.A.6 (Mich.)) .......................................14
Doe v. Delie
257 F.3d 309, 317 (3d Cir. 2001) ..............................................................15
Whalen v. Roe
429 U.S. 589, 599-600, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ...............................15
United States v. Westinghouse Elec. Corp.
638 F.2d 570, 577 (3d Cir. 1995) ..............................................................15
Powell v. Schriver
175 F.3d 107, 113-14 (2d Cir. 1999) ..........................................................15
Doe v. Southeastern Pa. Transp. Autho.
72 F.3d 1133, 1140 (3d Cir. 1995) ............................................................16
Westinghouse, supra
638 F.2d at 577 ...................................................................................16
Lawall, supra
307 F.3d at 79 ....................................................................................16
Roe v. Sherry
91 F.3d 1270, 1274 (9th Cir. 1996) ...........................................................16
Powell, supra
175 F.3d at 112 ...................................................................................16
Horne v. Patton
291 Ala. 701, 287 So. 2d 824 (1973) ..........................................................17
Schwartz v. Thiele
242 Cal. App. 2d 799, 51 Cal. Rptr. 767 (2d Dist. 1966) ................................17

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OPPOSITION PAGE 5 OF 25 09-CV-04231 (PR) RS
Simonsen v. Swenson
104 Neb. 224, 177 N.W. 831, 9 A.L.R. 1250 (1920) ..........................................17
Berry v. Moench
8 Utah 2d 191, 331 P.2d 814, 73 A.L.R. 2d 315 (1958) ....................................17
Quarles v. Sutherland
215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.3d 1103 (1965) ..................................17
Guity v. Kandilakis
821 S.W.2d 595 (Tenn. Ct. App. 1991) ........................................................17
John B. v. Superior Court
18 Cal. Rptr. 3d 48 (Cal. App. 2d Dist. 2004) ............................................17
Hill v. National Collegiate Athletic Assn.
7 Cal. 4th 1, 35 (1994) ........................................................................20
Hill v. National Collegiate Athletic Assn.
7 Cal. 4th 1, 36-37 (1994) .....................................................................20
Hill v. National Collegiate Athletic Assn.
7 Cal. 4th, 1, 37 (1994) .......................................................................20
Hill v. National Collegiate Athletic Assn.
7 Cal. 4th 1, 40 (1994) ........................................................................21
Hill v. National Collegiate Athletic Assn.
7 Cal. 4th 1, 26 Cal. Rptr. 2d 834, 865 P.2d 633 (1994) ...............................21
White v. Davis
13 Cal. 3d 757, 775, 120 Cal. Rptr. 94, 533 P.2d 222 (1975) ...........................21
Anderson v. Glisman
577 F. Supp. 1506 (D. Colo. 1984) ............................................................21
Bond v. Pecaut
561 F. Supp. 1037 (N.D. Ill. 1983), affd, 734 F.2d 18 (7th Cir. 1984) ..............21
Mikel v. Abrams
541 F. Supp. 591 (W.D. Mo. 1982), affd, 716 F.2d 907 (8th Cir. 1983) ...............22
Horne v. Patton
291 Ala. 701, 287 So. 2d 824 (1973) .........................................................22
Valencia v. Duval Corp.
132 Ariz. 348, 645 P.2d 1262 (Ct. App. Div. 2 1982) .....................................22
Vassiliades v. GarHnckels, Brooks Bros.
492 A.2d 580 (D.C. 1985) ........................................................................22
Leger v. Spurlock
589 So. 2d 40 (La. Ct. App. 1st Cir. 1991) ................................................22
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OPPOSITION PAGE 6 OF 25 09-CV-04231 (PR) RS
Bratt v. International Business Machines Corp.
392 Mass. 508, 467 N.E.2d 126 (1984) ........................................................22
Doe v. Roe
93 Misc. 2d 201, 400 N.Y.S.2d 668 (Sup 1977) ..............................................22
Prince v. St. Francis-St. George Hosp., Inc.
20 Ohio App. 3d 4, 484 N.E.2d 265 (1st Dist. Hamilton County 1985) ................22
Humphers v. First Interstate Bank of Oregon
298 Or. 706, 696 P.2d 527, 48 A.L.R.4th 651 (1985) .......................................22
Clayman v. Bernstein
38 Pa. D. & C. 543, 1955 WL 5023 (C.P. 1955) ..............................................22
Pyramid Life Ins. Co. v. Masonic Hospital Assn of Payne County, Okl.
191 F. Supp. 51 (W.D. Okla. 1961) ............................................................22
Simonsen v. Swenson
104 Neb. 224, 177 N.W. 831, 9 A.L.R. 1250 (1920) ..........................................22
Smith v. Driscoll
94 Wash. 441, 162 P. 572 (1917) ...............................................................22
Jordan v. Kelly
728 F.2d 1 (1st Cir. 1984) .....................................................................22
Doe v. Community Health Plan-Kaiser Corp.
268 A.D.2d 183, 709 N.Y.S.2d 215 (3d Dept 2000) ..........................................22
Simonsen, supra
104 Neb. 224, 177 N.W. 831, 9 A.L.R. 1250 (1920) ..........................................22
MacDonald v. Clinger
84 A.D.2d 482, 446 N.Y.S.2d 801 (4th Dept 1982) ..........................................23
State ex rel. Crowden v. Dandurand
970 S.W.2d 340 (Mo. 1998) ......................................................................23
Hague v. Williams
37 N.J. 328, 181 A.2d 345 (1962) ..............................................................23
Biddle v. Warren Gen. Hosp.
86 Ohio St. 3d 395, 715 N.E.2d 518 (1999) ..................................................23
Alexander v. Knight
197 Pa. Super. 79, 177 A.2d 142 (1962) ......................................................23
Schaffer v. Spicer
88 S.D. 36, 215 N.W.2d 134 (1974) .............................................................23
Morris v. Consolidation Coal Co.
191 W. Va. 426, 446 S.E.2d 648 (1994) .......................................................23
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OPPOSITION PAGE 7 OF 25 09-CV-04231 (PR) RS
Biddle v. Warren Gen. Hosp.
86 Ohio St. 3d 395, 715 N.E.2d 518 (1999) ..................................................23
Lugosi v. Universal Pictures
25 Cal. 3d 813, 819, 160 Cal. Rptr. 323, 603 P.2d 425 (1979) ..........................24
Forsher v. Bugliosi
26 Cal. 3d 792, 808-809, 163 Cal. Rptr. 628, 608 P.2d 716 (1980) .....................24
Kinsey v. Macur
107 Cal. App. 3d 265, 270, 165 Cal. Rptr. 608 (1980) ...................................24
Diaz v. Oakland Tribune, Inc.
139 Cal. App. 3d 118, 131, 188 Cal. Rptr. 762 (1983) ...................................24
FEDERAL STATUTES
Fed. R. Civ. P. 56(a)
Uniform Health-Care Information Act 2-101(a)-(b) ..................................16-17
Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule,
45 C.F.R. 164.530(c)..............................................................................19
UNITED STATES CONSTITUTION CODE
Title 42 U.S.C.A. 1983
STATE STATUTES
California Health & Safety Code 120975 ..................................................18
California Constitution, Article I, Section 1 .......................................19-20
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OPPOSITION PAGE 8 OF 25 09-CV-04231 (PR) RS
I.
RELEVANT FACTS
Beginning on July 20th, 2009, and every two months since, Defendant
Winslow has unlawfully disclosed private medical information about an inmate
(including the plaintiff) whenever the inmate has a scheduled appointment with
the P.A.C.E. Clinic, which is known to jail staff and inmates alike for its
exclusive treatment of HIV-positive patients. On the day of the appointment,
Defendant Winslow distributes a list of inmates having an appointment with
the clinic to corrections ofhcers (see Exhibit A), who then announce to the
entire unit in which an inmate is housed that he is scheduled to visit the
clinic. The name of the inmate is always listed and spoken in conjunction
with the name of the clinic, both on the list and in the announcement; it is
by the association of the inmates name with that of the clinic that his HIV-
positive status is made known. Also, while administering medications commonly
known for the treatment of HIV/AIDS, nurses announce the names of the inmates
medications loudly enough for others to hear, allowing for inmates to infer his
condition.
Plaintiff advised the defendants and Santa Clara Valley Health & Hospital
System Custody Health Services of the violation of his medical privacy rights
by grievance and by letter [see Exhibit F], however, adequate protective
measures against further unauthorized disclosure have not been instituted, in
that some employees of the defendants, namely, C.O. Kennedy (#1409) and C.O.
Brown (#2368), admit to or acknowledge the inadvertent disclosure of private
medical information [see Exhibits B and C], while other employees of the
defendants, namely, Sergeant Helm (#1668), fail to acknowledge that a problem
exists [see Exhibit D], and even fabricate the plaintiff's remarks and
response to the problem.
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OPPOSITION PAGE 9 OF 25 09-CV-04231 (PR) RS
Consequently, the plaintiff continued to be exposed to a pervasive risk of
harm, i.e., a strong likelihood of violence by other inmates, by the continued
unauthorized disclosure; and, in fact, on or around January 18th, 2010, the
plaintiff reported several such threats from other inmates as a result of the
unauthorized disclosure of his HIV-positive status [see Exhibit F], which
were also witnessed and reported by corrections ofhcers and other inmates [see
Exhibits D and E].
Accordingly, Plaintiff seeks an injunction from the Court, barring the
defendants from the continued unauthorized disclosure of private medical
information, and, in particular, the disclosure of the HIV-positive status of
an inmate to corrections ofhcers, and especially other inmates. Plaintiff also
seeks an injunction against the defendants, prohibiting them from further
failing to implement adequate protective measures to prevent the unlawful
and unauthorized disclosure of private medical information about HIV-positive
inmates that fully comply with all the requirements established by the Privacy
Rule of the Health Insurance Portability and Accountability Act.
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OPPOSITION PAGE 10 OF 25 09-CV-04231 (PR) RS
II.
ARGUMENT
In order to obtain summary judgment, the defendant must establish both
that there is no genuine dispute as to any relevant fact and that they are
entitled to judgment as a matter of law [Fed. R. Civ. P. 56(a)]. The defendants
showing as to these matters is defective because:
- The defendants claim that there is no evidence supporting the plaintiff's
claim; however, in this opposition, the plaintiff will provide documents
showing that the aforementioned defendants not only admit to disclosing
private medical information about the plaintiff to unauthorized jail
staff and other inmates, but will also provide a document that shows
the defendants were aware that this act violated a federal statute, and,
in particular, the Health Insurance Portability and Accountability Act
(HIPAA).
- The defendants' motion depends on establishing whether the defendants are
liable for the unauthorized disclosure of private medication information,
and, in particular, the disclosure of the plaintiffs HIV-positive status.
The defendants argument is that the plaintiffs right to medical privacy
is not clearly established and, consequently, the defendants could not have
reasonably known that their conduct was unlawful; however, as the plaintiff
will show, case law clearly establishes the plaintiffs right to medical
privacy, as well as his right from the unauthorized disclosure of his
HIV-positive status, under the same circumstances confronted by both the
plaintiff and the defendants. Moreover, the plaintiff will establish that,
as a question of law, there are multiple, prominent federal and California
state laws that govern the plaintiffs right to privacy in his medical
information, and the plaintiff will establish further that these laws were
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OPPOSITION PAGE 11 OF 25 09-CV-04231 (PR) RS
violated by the defendants.
- Defendants also claim that there is no supervisory liability on the parts
of Defendants Sepulveda and Flores; however, the plaintiff will cite
several federal cases that establish not only the plaintiffs right to
recover damages from Defendant Winslow, but also Defendants Flores and
Sepulveda for the unauthorized disclosure of private medical information.
- Contrary to the defendants' claim otherwise, the plaintiff has complied
with the administrative remedies requirement of the Santa Clara County
Department of Correction in all respects, in that he hled an inmate
grievance form after speaking with a corrections ofhcer directly, and a
corrections ofhcer and medical staff supervisor replied that they would
correct the problem, precluding any further requirement that the plaintiff
continue hling paperwork in regards to the issue. [See Plaintiff's
Complaint and Exhibit F.]
A. A PREPONDERANCE OF EVIDENCE SHOWS THAT THE DEFENDANTS ADMIT TO THE
UNAUTHORIZED AND UNLAWFUL DISCLOSURE OF PLAINTIFFS PRIVATE MEDICAL
INFORMATION
The list of names of inmates having appointments with the P.A.C.E.
Clinic, attached hereto as Exhibit A, shows unequivocally that the
defendants publish and distribute private medical information about inmates
at the Santa Clara County Department of Correction; and, as the lead
contractor for the P.A.C.E. Clinic at the Santa Clara County Department of
Correction, Defendant Winslow is obviously the publisher of the list.
The inmate grievance form, attached hereto as Exhibit B, contains
an admission by jail staff that an inmates HIV-positive status was and
is made known to other inmates on days when an inmate has an appointment
with the P.A.C.E. Clinic, and shows the link between the aforementioned
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OPPOSITION PAGE 12 OF 25 09-CV-04231 (PR) RS
list and the disclosure. The inmate grievance form also contains an
admission that medical staff disclose to other inmates an HIV-positive
inmates private medical information, as well. On the grievance form, a
corrections ofhcer states that, [The] inmate medical appointment sheet
stated, `P.A.C.E. Clinic.' I simply read the appointment as it was listed.
Also on the grievance form, a medical staff supervisor admits to the
untimely disclosure of the plaintiff's prescription records by a nurse,
and indirectly admits to the fact that patient conhdentiality was breached
by said disclosure.
The memorandum from Defendants Sepulveda and Flores, which is attached
hereto as Exhibit C, shows that the defendants are subjectively aware
that the disclosure of an inmates private medical information, however
inadvertent, is unlawful, in that the defendants specihcally state that
such privacy is mandated by federal law, i.e., the Health Insurance
Portability and Accountability Act (HIPAA). In the memorandum, Defendants
Flores and Sepulveda acknowledge the unlawful disclosure practices of
the Santa Clara County Department of Correction, as well as demonstrate
their knowledge of the illegality of such practices when they state, As a
reminder, inmate medical information is conhdential and may not be shared
with anyone. Inmates who are required to attend medical appointments
or clinics shall be advised by the housing unit ofhcer in private or by
using the general terms, such as, You have an appointment. Staff must
not make general announcements in housing units to advise an inmate they
have medical appointments or clinics, nor shall they use the name of the
type of appointment or clinic. Thank you for your cooperation with this
important HIPAA requirement.
In the Supervisor's Summary Report, attached hereto as Exhibit D,
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OPPOSITION PAGE 13 OF 25 09-CV-04231 (PR) RS
jail staff acknowledge that corrections ofhcers are still informing inmates
as to the HIV-positive status of the plaintiff. In it, a deputy writes,
Ofhcer Brown #2368 informed [the plaintiff] that inmates were talking
about him having AIDS. Ofhcer Brown concurs in her report, attached hereto
as Exhibit E, in which she wrote, I...do...remember an incident regarding
this concern. Also in the aforementioned report, an inmate reported that
he witnessed Ofhcer Brown overhearing other inmates speaking derogatorily
in regards to the plaintiffs HIV-positive status, and then rehousing them
[see Exhibit D, page 1, 7].
The Supervisor's Summary Report, attached hereto as Exhibit D, shows
that the defendants fail to acknowledge that the unlawful disclosure of
private medical information exists, even though their own staff report such
unlawful disclosure in other documents [see Exhibits B and E, which
is evidence that no meaningful steps were taken to prevent the further
unauthorized disclosure of the HIV-positive status of inmates, in that it
erroneously states that the plaintiff was satished with the response to
his grievance; however, the fact that the plaintiff has hled a civil suit
against the defendants proves that this is not true].
Therefore, evidence does indeed exist to support the 1983 claim made
by the plaintiff, and such evidence is, in fact, unparalleled among all
other such cases.
B. CASE LAW CLEARLY ESTABLISHES THE PLAINTIFFS CONSTITUTIONAL RIGHT TO
PRIVACY IN HIS MEDICAL INFORMATION
In Roberts v. Salano, F.Supp.2d, 2008 WL 4471003 (E.D.Cal.), the court
held that the disclosure of a prisoners private medical condition to
another prisoner by a corrections ofhcer to another inmate constituted a
violation of the Fourteenth Amendments Due Process Clause, supporting the
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OPPOSITION PAGE 14 OF 25 09-CV-04231 (PR) RS
prisoner's 1983 claim against the corrections ofhcer, as the Due Process
Clause bars disclosure of personal matters, including medical information.
In this case, Plaintiff Roberts alleges that while on the yard at
California State Prison-Corcoran on August 11, 2007, Defendant Salano
disclosed his private medical condition to another inmate, and that the
defendant told the other inmate the plaintiff was HIV-positive so that
other inmates would harass the plaintiff. Defendant Martinez, who was the
building supervisor, allegedly failed to hold his ofhcer accountable for
his conduct.
In this case, the court stated that the plaintiffs allegations were
sufhcient to give rise to a claim for relief under 1983 against Defendant
Salano for revealing his HIV status to another inmate, citing Whalen
v. Roe, 429 U.S. 589, 598-99, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), in which
another court determined that the Due Process Clause of the Fourteenth
Amendment protects individuals against the disclosure of personal matters,
and that the Due Process Clause clearly encompasses medical information
and its conhdentiality [see also Norman-Bloodsaw v. Lawrence Berkeley
Lab., 135 F.3d 1260, 1269 (9th Cir. 1998) (citations omitted)]. The court
further stated that the right to informational privacy applies both when
an individual chooses not to disclose highly sensitive information to the
government and when an individual seeks assurance that such information
will not be made public [Planned Parenthood of Southern Arizona v. Lawall,
307 F.3d 783, 789-90 (9th Cir. 2002) (citations omitted)].
In Moore v. Prevo, 379 Fed.Appx. 425, 2010 WL 1849208 (C.A.6 Mich.),
the court ruled that a prisoner has a Fourteenth Amendment privacy
interest in having his sensitive medical information kept conhdential from
other inmates, and thus, prison ofhcials' alleged conduct in disclosing
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OPPOSITION PAGE 15 OF 25 09-CV-04231 (PR) RS
prisoners HIV-positive status to other inmates would violate the prisoners
Fourteenth Amendment rights, unless the disclosure was necessary because
of legitimate penological interests.
In this case, plaintiff-prisoner, proceeding in forma pauperis, hled
a 1983 action against prison ofhcials and corrections ofhcers, alleging
that they violated his constitutional right to privacy when they disclosed
his HIV-positive status to other ofhcers and inmates, and also asserted
various state law claims.
The court stated that, while it had never addressed whether an inmate
has a Fourteenth Amendment privacy interest in having his sensitive medical
information kept conhdential from other inmates, other circuits' precedent
offered some guidance; specihcally, the Third Circuit, which has held that
an inmate has a constitutional privacy right guarding against disclosure
of his sensitive medical information, especially to other inmates [Doe v.
Delie, 257 F.3d 309, 317 (3d Cir.2001)].
The court stated further that there are at least two types of privacy
protected by the Fourteenth Amendment: the individual interest in avoiding
disclosure of personal matters, and the right to autonomy and independence
in personal decision-making [see Whalen v. Roe, 429 U.S. 589, 599-600, 97
S.Ct. 869, 51 L.Ed.2d 64 (1977); United States v. Westinghouse Elec. Corp.,
638 F.2d 570, 577 (3d Cir.1995)]. As described above, the plaintiffs privacy
interest clearly falls into the hrst category, which some courts have
referred to as a right to conhdentiality, in order to distinguish it from
the right to autonomy and independence in personal decision making [see
Powell v. Schriver, 175 F.3d 107, 113-14 (2d Cir.1999)].
The court concluded that, It is beyond question that information
about ones HIV-positive status is information of the most personal
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OPPOSITION PAGE 16 OF 25 09-CV-04231 (PR) RS
kind and that an individual has an interest in protecting against the
dissemination of such information [see Doe v. Southeastern Pa. Transp.
Autho., 72 F.3d 1133, 1140 (3d Cir.1995); Westinghouse, 638 F.2d at 577].
Moreover, a prisoners right to privacy in this medical information is not
fundamentally inconsistent with incarceration, even though it is true that
the privacy protection afforded to medical information is not absolute, and
may be infringed upon a showing of proper governmental interest [Lawall,
307 F.3d at 790 (citations omitted)], and that the governmental interest in
disclosure must advance a legitimate state interest and the governments
action must be narrowly tailored to meet the legitimate interest [Roe
v. Sherry, 91 F.3d 1270, 1274 (9th Cir.1996) (quotations and citation
omitted)]; however, in this case, the court determined that the disclosure
of the plaintiffs HIV-positive status to another inmate did not serve any
legitimate penological or state interest, and, as a result, joined the
Second Circuit in recognizing that the constitutional right to privacy in
ones medical information exists in prison [see Powell, 175 F.3d at 112].
Consequently, there exists an genuine issue of material fact in the
instant matter as to whether the disclosure of the plaintiffs HIV-positive
status served any legitimate penological or state interest, or whether
the disclosure was a violation of the plaintiffs constitutional right to
privacy.
C. FEDERAL AND STATE STATUTES SPECIFICALLY PROHIBIT THE DEFENDANTS FROM THE
UNAUTHORIZED DISCLOSURE OF PRIVATE MEDICAL INFORMATION
1. Defendants are statutorily prohibited from disclosing private medical
information by the Uniform Health-Care Information Act
The Uniform Health-Care Information Act provides that, except
as the statute authorizes, a health-care provider, an individual who
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assists a health-care provider in the delivery of health care, or an
agent and employee of a health-care provider may not disclose health-
care information about a patient to any other person without the
patients written authorization [Uniform Health-Care Information Act
2-101(a)]. The statute also requires each health-care provider to
maintain a record of disclosures of each patients record [Uniform
Health-Care Information Act 2-101(b)].
While it is true that a health-care provider may disclose a
patient's health-care information without authorization to an ofhcial
of a penal or other custodial institution in which the patient is
detained [Uniform Health-Care Information Act 2-101(a)(9)], the
provider may only do so to the extent that the recipient needs to know
the information. In this case, Defendant Winslow cannot show that the
disclosure was made for certain overriding competing interests to
which the law affords greater protection than to the interest of the
patient in keeping the information undisclosed, such as if the public
interest demands, for health reasons, the disclosure of the information
[Horne v. Patton, 291 Ala. 701, 287 So. 2d 824 (1973); Schwartz v.
Thiele, 242 Cal. App. 2d 799, 51 Cal. Rptr. 767 (2d Dist. 1966); Simonsen
v. Swenson, 104 Neb. 224, 177 N.W. 831, 9 A.L.R. 1250 (1920); Berry v.
Moench, 8 Utah 2d 191, 331 P.2d 814, 73 A.L.R. 2d 315 (1958)], nor can
he show that he was required by law to make the disclosure [Quarles
v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249, 20 A.L.R.3d 1103 (1965)].
Therefore, it would not be contrary to public policy to hold Defendant
Winslow liable for disclosure made under compulsion by a court [Guity
v. Kandilakis, 821 S.W.2d 595 (Tenn. Ct. App. 1991)].
Even still, the Uniform Health-Care Information Act explicitly
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prohibits the disclosure of a patients HIV-positive status under any
circumstance. In John B. v. Superior Court, 18 Cal. Rptr. 3d 48 (Cal.
App. 2d Dist. 2004), review granted and opinion superseded, (Nov. 10,
2004), the court stated that the purpose of any statute governing
the disclosure of acquired immune dehciency syndrome (AIDS) tests
is to protect the privacy of individuals who are tested for AIDS by
prohibiting the compelled disclosure of information that would identify
any individual who has taken such a test. In John B. v. Superior Court,
supra, the court also referred another statute, namely, California
Health & Safety Code 120975, which states that:
To protect the privacy of individuals who are the subject of blood
testing for antibodies to human immunodehciency virus (HIV), the
following shall apply:
Except as provided in Section 1603.1, 1603.3, or 121022,
no person shall be compelled in any state, county,
city, or other local civil, criminal, administrative,
legislative, or other proceedings to identify or provide
identifying characteristics that would identify any
individual who is the subject of a blood test to detect
antibodies to HIV.
2. Defendants are also statutorily prohibited from the unauthorized
disclosure of private medical information by the Health Insurance
Portability and Accountability Act (HIPAA) Privacy Rule
The purpose of the Health Insurance Portability and Accountability
Act Privacy Rule is to establish appropriate safeguards that health
care providers and others must achieve to protect the privacy of health
information and to hold violators accountable, with civil and criminal
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penalties that can be imposed if they violate patients privacy rights.
The Privacy Rule also enables patients to limit the release of
information to the minimum reasonably needed for the purpose of
disclosure and empowers individuals to control certain uses and
disclosures of their health information. The Privacy Rule requires the
average health care provider to:
- Notify patients about their privacy rights and how their
information can be used;
- Adopt and implement privacy procedures for its practice;
- Train employees so that they understand the privacy procedures;
- Designate an individual to be responsible for seeing that the
privacy procedures are adopted and followed; and,
- Secure patient records containing individually identihable health
information so that they are not readily available to those who do
not need them.
Neither Defendant Winslow nor Defendants Flores and Sepulveda
meet these requirements, in that patient-inmates are not notihed of
their privacy rights, and employees, such as pill-call nurses, are
not trained to maintain the conhdentiality of a patient-inmate's
prescription records; moreover, Defendant Winslow and Defendants
Flores and Sepulveda have failed to provide for the implementation of
security safeguards as required by Section 530(c)(1) and (c)(2) of the
Privacy Rule, even though 45 C.F.R. 164.530(c) specihcally states that
(1) a covered entity must have in place appropriate administrative,
technical, and physical safeguards to protect the privacy of protected
health information, and (2) a covered entity must reasonably safeguard
protected health information from any intentional or unintentional use
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or disclosure that is in violation of the standards, implementation
specihcations or other requirements of this subpart.
3. Defendants invasion of the plaintiffs privacy violated the California
Constitution, Article I, Section 1, because the defendants conduct
impacts on a legally protected privacy interest of private medical
record information, the plaintiff has a reasonable expectation of
privacy, and the defendants invasion is serious. the defendants have
failed to show a competing or countervailing interest to justify the
intrusion
a. Defendants Conduct Impacts a Legally Protected Privacy Interest.
An essential element of a state constitutional cause of action
for invasion of privacy (Cal. Const. art. I, 1) is that the
defendant's conduct impacts a specihc, legally protected interest,
such as information privacy or autonomy privacy [Hill v. National
Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 35].
b. Plaintiff Has Reasonable Expectation of Privacy. An essential
element of a state constitutional cause of action for invasion
of privacy (Cal. Const. art. I, 1) is that the plaintiff has
a reasonable expectation of privacy [Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal. 4th 1, 36-37].
c. Serious Invasion of Privacy Interest. An actionable invasion of
privacy under Cal. Const. art. I, 1, must be sufhciently serious
in its nature, scope, and actual or potential impact to constitute
an egregious breach of the social norms underlying the privacy
right [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th,
1, 37].
d. Balancing Test. When the defendant fails to show that a competing
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OPPOSITION PAGE 21 OF 25 09-CV-04231 (PR) RS
or countervailing privacy or nonprivacy interest outweighs the
specihcally identihed privacy interest of the plaintiff, then there
is a violation of the state constitutional right of privacy [Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 40].
e. Rebuttal of Competing of Countervailing Interest. When there are
feasible and effective alternatives to defendants conduct which
have a lesser impact on privacy interests, defendants conduct is
actionable as a violation of plaintiffs right to privacy [Hill v.
National Collegiate Athletic Assn. (1994) 7 Ca. 4th, 1, 40].
4. Defendants invasion of the plaintiffs privacy violated the California
Constitution, Article I, Section 1, because the defendants have failed
to show a compelling interest sufhcient to justify the unauthorized
disclosure of private medical information
a. Compelling Interest Required to Justify Some Aspects of Right to
Privacy Under California Constitution. The use of the compelling
interest standard is required to justify aspects of the right
of privacy under Cal. Const. art. I, 1, that implicate obvious
government action impacting freedom of expression or an obvious
invasion of an interest fundamental to personal autonomy, that is,
the right of an individual to control the dissemination of private
medical information [Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal. 4th 1, 26 Cal. Rptr. 2d 834, 865 P.2d 633; see White
v. Davis (1975) 13 Cal. 3d 757, 775, 120 Cal. Rptr. 94, 533 P.2d
222].
D. FEDERAL AND STATE PRIVACY LAW AFFORDS A TORT ACTION FOR DAMAGES RESULTING
FROM THE UNLAWFUL DISCLOSURE OF PRIVATE MEDICAL INFORMATION
1. Defendant Winslow can be held liable for the unauthorized disclosure of
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private medical information per federal case law
Federal law establishes that a patient may recover damages from
a physician for an unauthorized disclosure concerning the patient on
the ground that such disclosure constitutes an actionable invasion
of the patients privacy [Anderson v. Glisman, 577 F. Supp. 1506 (D.
Colo. 1984) (applying Colorado law); Bond v. Pecaut, 561 F. Supp. 1037
(N.D. Ill. 1983), judgment affd, 734 F.2d 18 (7th Cir. 1984) (applying
Illinois law); Mikel v. Abrams, 541 F. Supp. 591 (W.D. Mo. 1982), affd,
716 F.2d 907 (8th Cir. 1983) (applying Missouri law); Horne v. Patton,
291 Ala. 701, 287 So. 2d 824 (1973); Valencia v. Duval Corp., 132 Ariz.
348, 645 P.2d 1262 (Ct. App. Div. 2 1982); Vassiliades v. Garhnckel's,
Brooks Bros., 492 A.2d 580 (D.C. 1985); Leger v. Spurlock, 589 So. 2d 40
(La. Ct. App. 1st Cir. 1991); Bratt v. International Business Machines
Corp., 392 Mass. 508, 467 N.E.2d 126 (1984); Doe v. Roe, 93 Misc. 2d
201, 400 N.Y.S.2d 668 (Sup 1977); Prince v. St. Francis-St. George Hosp.,
Inc., 20 Ohio App. 3d 4, 484 N.E.2d 265 (1st Dist. Hamilton County
1985); Humphers v. First Interstate Bank of Oregon, 298 Or. 706, 696
P.2d 527, 48 A.L.R.4th 651 (1985); Clayman v. Bernstein, 38 Pa. D. & C.
543, 1955 WL 5023 (C.P. 1955)]. Thus, a physician can be held answerable
in damages to a patient for injuries resulting to the latter from a
wrongful disclosure of conhdential information [Pyramid Life Ins. Co.
v. Masonic Hospital Assn of Payne County, Okl., 191 F. Supp. 51 (W.D.
Okla. 1961); Simonsen v. Swenson, 104 Neb. 224, 177 N.W. 831, 9 A.L.R.
1250 (1920); Smith v. Driscoll, 94 Wash. 441, 162 P. 572 (1917)].
Recovery for disclosure of conhdential medical information may
also be granted on the ground that violation of statutory requirements,
such as the Health Insurance Portability Accountability Act (HIPAA)
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Privacy Rule or the Uniform Health-Care Information Act, which concern
the conduct of physicians, give rise to a cause of action in tort in
the patient [Jordan v. Kelly, 728 F.2d 1 (1st Cir.1984) (applying Rhode
Island law); Doe v. Community Health Plan-Kaiser Corp., 268 A.D.2d 183,
709 N.Y.S.2d 215 (3d Dept 2000); Simonsen v. Swenson, 104 Neb. 224, 177
N.W. 831, 9 A.L.R. 1250 (1920)].
Recovery has been granted on the ground that disclosure by the
physician constitutes a breach of a legally recognized conhdence or
privileged relationship between the patient and physician [MacDonald
v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801 (4th Dept 1982); State ex
rel. Crowden v. Dandurand, 970 S.W.2d 340 (Mo. 1998); Hague v. Williams,
37 N.J. 328, 181 A.2d 345 (1962); Biddle v. Warren Gen. Hosp., 86 Ohio
St. 3d 395, 715 N.E.2d 518 (1999); Alexander v. Knight, 197 Pa. Super.
79, 177 A.2d 142 (1962); Schaffer v. Spicer, 88 S.D. 36, 215 N.W.2d 134
(1974); Morris v. Consolidation Coal Co., 191 W. Va. 426, 446 S.E.2d 648
(1994)].
2. Defendants Flores and Sepulveda can also be held liable as a third-
party for the unauthorized disclosure of private medical information
per federal case law
A third party can be held liable for inducing the unauthorized,
unprivileged disclosure of nonpublic medical information that a
physician has learned within a physician-patient relationship, if the
plaintiff proves: (1) the defendant knew or reasonably should have
known of existence of physician-patient relationship; (2) the defendant
intended to induce the physician to disclose information about the
patient or the defendant reasonably should have anticipated that his
actions would induce the physician to disclose such information; and
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OPPOSITION PAGE 24 OF 25 09-CV-04231 (PR) RS
(3) the defendant did not reasonably believe that the physician could
disclose that information to the defendant without violating the duty
of conhdentiality [Biddle v. Warren Gen. Hosp., 86 Ohio St. 3d 395, 715
N.E.2d 518 (1999)].
3. California state law entitles the plaintiff to recover damages for a
violation of medical information privacy rights
a. Right of Privacy. The right of privacy encompasses the tort
of public disclosure of private facts [see Lugosi v. Universal
Pictures (1979) 25 Cal. 3d 813, 819, 160 Cal. Rptr. 323, 603 P.2d 425
(main point now abrogated by Civ. Code 3344.1)].
b. Elements of Public Disclosure Tort. The tort of public disclosure
of private facts consists of (1) a public disclosure (2) of private
facts (3) that would be offensive and objectionable to a reasonable
person [see Forsher v. Bugliosi (1980) 26 Cal. 3d 792, 808-809, 163
Cal. Rptr. 628, 608 P.2d 716].
c. Public Disclosure DeHned. Public disclosure means a communication
to the public in general or to a large number of people as
distinguished from one individual or a few [Kinsey v. Macur (1980)
107 Cal. App. 3d 265, 270, 165 Cal. Rptr. 608].
d. Private Facts DeHned. The facts disclosed must concern the
information that is private and not already in the public domain
[Diaz v. Oakland Tribune, Inc. (1983) 139 Cal. App. 3d 118, 131, 188
Cal. Rptr. 762].
//
//
//
//
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OPPOSITION PAGE 25 OF 25 09-CV-04231 (PR) RS
III.
CONCLUSION
For all the reasons set forth above, the plaintiff requests that the
defendants motion for summary judgment be denied. The opposition is based on
this document, and on the exhibits attached hereto, namely Exhibits A through
F, which are served and hled with this opposition.
Dated: September 1st, 2011
Respectfully submitted,

James Alan Bush
Plaintiff in pro per
EXHIBIT A
EXHIBIT B
EXHIBIT C