California Civil Jury Instructions (CACI) (2017)

3071. Retaliation for Refusing to Authorize Disclosure of Medical Information—Essential Factual Elements (Civ. Code, § 56.20(b))

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3071.Retaliation for Refusing to Authorize Disclosure of Medical
Information—Essential Factual Elements (Civ. Code, § 56.20(b))
[Name of plaintiff] claims that [name of defendant] discriminated against
[him/her] because [he/she] refused to authorize disclosure of [his/her]
medical information to [name of defendant]. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] asked [name of plaintiff] to sign an
authorization so that [name of defendant] could obtain medical
information about [name of plaintiff] from [his/her] health care
2. That [name of plaintiff] refused to sign the authorization;
3. That [name of defendant] [specify retaliatory acts, e.g., terminated
plaintiff’s employment];
4. That [name of plaintiff]’s refusal to sign the authorization was a
substantial motivating reason for [name of defendant]’s decision
to [e.g., terminate plaintiff’s employment];
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Even if [name of plaintiff] proves all of the above, [name of defendant]’s
conduct was not unlawful if [name of defendant] proves that the lack of
the medical information made it necessary to [e.g., terminate plaintiff’s
New June 2015
Directions for Use
An employer may not discriminate against an employee in terms or conditions of
employment due to the employee’s refusal to sign an authorization to release his or
her medical information to the employer. (Civ. Code, § 56.20(b).). However, an
employer may take any action that is necessary in the absence of the medical
information due to the employee’s refusal to sign an authorization. (Ibid.)
Give this instruction if an employee claims that his or her employer retaliated
against him or her for refusing to authorize release of medical information. The
employee has the burden of proving a causal link between the refusal to authorize
and the employer’s retaliatory actions. The employer then has the burden of
proving necessity. (See Kao v. University of San Francisco (2014) 229 Cal.App.4th
437, 453 [177 Cal.Rptr.3d 145].) If necessary, the instruction may be expanded to
define “medical information.” (See Civ. Code, § 56.05(j) [“medical information”
The statute requires that the employer’s retaliatory act be “due to” the employee’s
refusal to release the medical information. (Civ. Code, § 56.20(b).) One court has
instructed the jury that the refusal to release must be a “motivating reason” for the
retaliation. (See Kao,supra, 229 Cal.App.4th at p. 453.) With regard to the
causation standard under the Fair Employment and Housing Act, the California
Supreme Court has held that the protected activity must have been a substantial
motivating reason. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained.)
Sources and Authority
• Confidentiality of Medical Information Act. Civil Code section 56 et seq.
Employee’s Refusal to Authorize Release of Medical Records to Employer.
Civil Code section 56.20(b).
• “An employer ‘discriminates’ against an employee in violation of section 56.20,
subdivision (b), if it improperly retaliates against or penalizes an employee for
refusing to authorize the employee’s health care provider to disclose
confidential medical information to the employer or others (see Civ. Code,
§ 56.11), or for refusing to authorize the employer to disclose confidential
medical information relating to the employee to a third party (see Civ. Code,
§ 56.21).” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 861 [59 Cal. Rptr.
2d 696, 927 P.2d 1200], original italics.)
• “[T]he jury was instructed that if [plaintiff] proved his refusal to authorize
release of confidential medical information for the FFD [fitness for duty
examination] was ‘the motivating reason for [his] discharge,’ [defendant]
‘nevertheless avoids liability by showing that . . . its decision to discharge
[plaintiff] was necessary because [plaintiff] refused to take the FFD
examination.’ ” (Kao,supra, 229 Cal.App.4th at p. 453.)
Secondary Sources
Witkin, California Evidence (4th ed. 2012) Witnesses § 681
37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.202
(Matthew Bender)
3072–3099. Reserved for Future Use