Suit Over Medical Records Subpoena Goof Revived

     PASADENA, Calif. (CN) — The Ninth Circuit revived claims on Tuesday by a woman whose medical records were used against her because Los Angeles County prosecutors told the Kaiser hospital she was dead.
     Detrice Garmon had wanted to give alibi witness testimony in her son’s murder trial but ran into a complication with state-court procedure because she was scheduled to have a brain tumor removed.
     Though Garmon authorized Kaiser Permanente to provide the prosecution with medical records related to her tumor, the lead prosecutor instead subpoenaed all of Garmon’s medical records from Kaiser.
     In a declaration support the subpoena application, Los Angeles County Deputy District Attorney Michele Hanisee misrepresented that Garmon was the murder victim in her son’s trial.
     Relying on her full medical records, the state undermined Garmon’s witness testimony. Her son was convicted of murder.
     Garmon soon filed a federal complaint pro se against Kaiser, the county, Hanisee and Steve Cooley, who had been the district attorney of Los Angeles at the time.
     Though the court dismissed Garmon’s entire complaint, she scored a reversal today from the Ninth Circuit.
     The three-judge appellate panel said Hanisee does have absolute immunity for issuing the subpoena but that her accompanying declaration is another matter.
     Writing for the panel by designation from Oakland, Senior U.S. District Judge Claudia Wilken cited precedent from a 1997 decision by the U.S. Supreme Court, Kalina v. Fletcher.
     “Like the prosecutor in Kalina, Hanisee’s declaration states particular facts under penalty of perjury, making her more akin to a witness than a prosecutor in this function,” Wilken wrote. “Thus, following Kalina, Hanisee is not entitled to absolute immunity for her declaration in support of the subpoena.”
     After finding that the same is true of former DA Cooley, the court said Garmon also deserves a chance to cure the errors in her claims against the county with an amended complaint.
     Wilken noted that pro se litigants are not held to the same stringent standards as those represented by counsel, and that Garmon’s complaint could be construed to include a theory of municipal liability against LA County.
     The ruling concludes with Wilken also reviving Garmon’s state-law claims against the LA defendants and against the medical group.
     “Kaiser does not dispute that supplemental jurisdiction is appropriate if any federal claim against county defendants survives,” Wilken wrote. “Because we reverse the dismissal of certain federal claims against county defendants, we reverse the district court’s dismissal of claims against Kaiser.”
     Garmon had filed her suit pro se but was represented in the appeal by Brian Morris with Duane Morris in San Diego.
     LA had been represented by principal deputy county counsel Millicent Rolon.
     Kaiser was represented by David Pruett, an attorney with Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, of Long Beach.
     None of the attorneys returned emails Friday seeking comment.

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