DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
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VALENCIA ACOY as mother and next friend to
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STANICE ACOY,
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2002-CV-0071
Plaintiff,
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v.
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KMART CORPORATION,
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Defendant.
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________________________________________________5
TO:
Lee J. Rohn, Esq.
Yvette Ross-Edwards, Esq.
ORDER REGARDING DEFENDANT’S MOTIONS TO COMPEL
THIS MATTER came before the Court upon the parties’ Joint Stipulation Regarding
Defendant’s Motion to Compel Plaintiff to Provide Signed Medical Authorizations (Docket
No. 64) and Joint Stipulation Regarding Defendant’s Motion to Compel Plaintiff to Provide
Supplemental Responses to Discovery (Docket No. 65).
In its motion to compel Plaintiff to provide signed medical authorizations,
Defendant claims that Plaintiff refuses to provide the “HIPAA Authorizations” in the
absence of a confidentiality agreement and that Defendant objects to the scope of Plaintiff’s
proposed confidentiality agreement.
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Acoy v. Kmart Corp.
2002-CV-0071
Order Regarding Defendant’s Motions to Compel
Page 2
Defendant cites to the paragraph of Plaintiff’s proposed confidentiality agreement
that purports to define confidential information for purposes of the agreement.  It is clear
from this cited definition that Plaintiff seeks to include all of her medical and psychological
records.
This Court previously has held that, where a party’s physical condition is a factor
or element of the party’s claims, no patient-physician privilege exists, pursuant to V.I. Code
Ann. tit. 5 § 855.  Section 855 codifies the physician-patient privilege in the Virgin Islands.
However, subparagraph four (4) of said statute, provides, in pertinent part: “There is no
privilege under this section in an action in which the condition of the patient is an element
or factor of the claim or defense of the patient . . . .“  V.I. Code Ann. tit. 5 § 855(4) (1997).
The plain meaning of the provision is that there is no physician-patient privilege in an
action where the condition of the patient is an element or factor of the claim or defense of
such patient.  In other words, where the “condition” of a patient (as defined by the statute)
is an element or factor of a claim or defense of that patient in a civil action, there is no
physician-patient privilege in that action.
Since no physician-patient privilege exists in this matter, all Plaintiff’s medical
records are not privileged nor require confidential treatment.  However, because  alcohol
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Acoy v. Kmart Corp.
2002-CV-0071
Order Regarding Defendant’s Motions to Compel
Page 3
and drug abuse treatment, mental health, and AIDS/HIV diagnosis and/or treatment are
protected by the Health Insurance Portability and Accountability Act (HIPAA), the Court
will order that such information be subject to a confidentiality agreement.  The parties’
confidentiality agreement shall incorporate the provisions as ordered herein.
With regard to Defendant’s motion to compel supplemental discovery responses,
the record reflects that Plaintiff filed notice of service of her supplemental responses on
May 29, 2007 (Docket No. 69).  Thus, the Court finds said motion moot.
Accordingly, it is hereby ORDERED:
1.
Defendant’s Motion to Compel Plaintiff to Provide Signed Medical
Authorizations (Docket No. 64) is GRANTED.
2.
Plaintiff shall, within ten (10) days, execute what Defendant refers to as the
HIPAA Authorizations, which may include the release of information
concerning alcohol and/or drug abuse treatment and/or mental health and/or
AIDS- or HIV-related condition, diagnosis, and/or treatment.
3.
The parties shall, within ten (10) days, execute a confidentiality agreement
in accordance with the following provisions:
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Acoy v. Kmart Corp.
2002-CV-0071
Order Regarding Defendant’s Motions to Compel
Page 4
a.
The words contract, agreement, medical records, and Sexually Transmitted
Disease [sic] shall be removed from the definition of “confidential
information.”
b.
Access to all alcohol and/or drug abuse treatment and/or mental
health and/or AIDS- or HIV-related information shall be limited to
just those attorneys and support staff directly involved in preparation
of this case, and counsel for Defendant shall not allow representatives
of Defendant access to the information.
c.
Counsel for Defendant may reveal the alcohol and/or drug abuse
and/or mental health and/or AIDS- or HIV-related information to the
minimum number of Defendant’s experts necessary to evaluate the
information and prepare the case.
d.
All alcohol and/or drug abuse and/or mental health and/or AIDS- or
HIV-related information shall be kept in separate envelopes on the
front of which shall be affixed a notice stating its confidential nature,
and counsel for Defendant shall inform each person to whom such
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Acoy v. Kmart Corp.
2002-CV-0071
Order Regarding Defendant’s Motions to Compel
Page 5
information is disclosed of its confidential nature and that person's
duties under the Confidentiality Agreement entered in this matter.
e.
At the conclusion of legal proceedings between the parties, counsel for
Defendant shall return all alcohol and/or drug treatment and/or
mental health and/or AIDS- or HIV-related information to Plaintiff.
4.
Defendant’s Motion to Compel Plaintiff to Provide Supplemental Responses
to Discovery (Docket No. 65) is DENIED AS MOOT.
ENTER:
Dated: February 21, 2008
                                /s/                                   
GEORGE W. CANNON, JR.
U.S. MAGISTRATE JUDGE
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