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Paul M Kaufmann 10/01/15

Dear Colleague,

This DCL would be more helpful if it also identified various ways that a student (potential plaintiff) provides University Counsel consent to access medical records when the student has already disclosed treatment records to private counsel in preparing a lawsuit against the University.  For example, do the following steps authorize University Counsel to access relevant records, if plaintiff counsel contacts University Counsel, names the student-client they represent, and

1)      serves a written “Litigation Hold” directing University Counsel to secure and produce records to prepare a lawsuit.

2)      serves written notice of Tort Claim.

3)      serves written notice that a pending lawsuit will allege damages for “future mental health treatment, medical expense, and impaired career income due to PTSD and related disorders” as well as “emotional distress.”

Do these steps, individually or in any combination, constitute plaintiff consent for University Counsel to access all records relevant to a claim or defense?  Please address steps taken by outside counsel before filing a lawsuit that communicates consent from the student, other than the generic signed release, thereby authorizing University Counsel to obtain relevant records.  I would be happy to discuss and assist you with such a paragraph, if that would be helpful.

My concern is that the current DCL guidance, absence more description of what constitutes student consent, may be misconstrued as the only means by which University attorneys may access records in anticipation of litigation.  Moreover, would it be fair to warn University Counsel confronted with the circumstances described in the aforementioned three steps, that failure to access any and all records relevant to a claim or defense may incur malpractice liability, court sanction, or risk violating the rules of professional conduct?

Thank you for your time.