On March 15, 2018, Washington governor Jay Inslee signed Senate Bill 6027 into law. This law impacts discovery in cases brought under the Washington Law Against Discrimination (“WLAD”). The law becomes effective on June 7, 2018. This law states that a plaintiff who seeks non-economic damages (such as emotional distress) under WLAD does not thereby waive the privileged status of his or her medical records. A plaintiff will be deemed to have waived the privilege of his or her medical records only in these three circumstances: (1) the plaintiff alleges that the defendant’s conduct caused a specific, diagnosable injury; (2) the plaintiff relies on the records or testimony of a healthcare provider to seek general damages; or (3) the plaintiff is alleging discrimination on the basis of disability or failure to accommodate a disability.
In other words, a non-disabled plaintiff who seeks only non-economic damages (such as emotional distress) and who does not rely on evidence from a healthcare provider will generally be deemed to not have waived the physician-patient privilege of his or her medical records. In such circumstances, discovery will be considerably more limited as a result of this new law.
Thus, an employer accused of discrimination by an employee is now likely to face a significantly greater challenge gaining access to that employee’s medical records during the discovery phase of the lawsuit.
If you are facing a discrimination complaint or have questions about ensuring compliance with the Washington Law Against Discrimination, please contact Margaret Davis at firstname.lastname@example.org or 206-447-0182.