It never seems fair. In lawsuits, employees frequently put their medical condition and history at issue by alleging they are disabled or suffered emotional injuries because of the employers' actions, but then are able to deny their employers access to their medical records and avoid independent medical examinations ("IMEs"). Courts justify this double-standard by finding that such discovery would invade the plaintiffs' privacy and that claimed emotional injuries are "garden variety." However, in one recent case an employer successfully required a discharged worker to undergo an IME. But be careful what you wish for, as such a decision may create a legal duty for an employer, to pursue such an IME and take follow-up action.

In Gavin v. Hilton Worldwide, Inc.,[1] a discharged hotel employee sued under the Americans with Disabilities Act, claiming the hotel failed to reasonably accommodate her chronic, severe depression and fired her because of her disability. She also alleged that, because of Hilton's conduct, she was unable to continue treatment for her mental health problems, and that her discharge caused her such severe emotional distress, she attempted to commit suicide and was hospitalized.

The plaintiff produced numerous psychiatric records in the case, presumably because she felt they would bolster her ADA, intentional infliction of emotional distress, and damages claims. But her records and contentions went over the top, well beyond "garden variety," in the Court's estimation. For example, the records showed that, in one group therapy session while she was employed, she described her anger with another Hilton employee, how she stalked the fellow employee, how she would "take revenge" on her someday, how she intended to "hurt her" and "cut her" and pictured her "lying [sic] on the floor holding her intestines." Because of her statements and her reported failure to take her medication, she was placed in an involuntary psychiatric hold for a number of days. After her release, she resumed work and was fired months later.

With this background, the Court granted Hilton's motion to compel the plaintiff to undergo an IME, when she refused to do so voluntarily. The Court refused to set in advance the scope of the IME, leaving that to the examiner. However, the Court expressly ruled that the IME could include "inquiries into personal, occupational, educational, religious, drug and alcohol, legal, family and marital history," and could delve into whether the plaintiff posed a threat to Hilton employees.

This ruling could be a water shed event, inducing the parties to settle. However, the decision could have greater ramifications, in both the Gavin case and in other similar lawsuits. California law requires therapists who determine or reasonably should determine that a patient poses a serious danger of violence to another, to use reasonable care to protect the intended victim. Such care may call for a warning to the intended victim, notice to the police, other reasonably necessary steps.[2]

In Gavin, if the psychiatrist informs Hilton that she poses a danger to a targeted individual, especially one employed by Hilton, the psychiatrist (and also, perhaps, the company) may have a duty to warn the targeted victim. Moreover, this law may develop in such a way that, in other cases like Gavin, where discovery reveals that a current or former employee may pose a threat to a targeted individual, especially one employed by the employer, the employer may have a legal duty to seek an IME, to gain a better basis for a warning to the targeted person.