The California Confidentiality of Medical Information Act (Civ. Code 56 et seq.) allows a patient the right to sue for $1,000 nominal damages plus actual damages suffered as a result of an unauthorized release of the patient’s medical records. (Civ. Code 56.36(b)(2).) This decision holds that there is a constitutional right to a jury trial of a claim for nominal statutory damages under this section. Non-compensatory statutory nominal damages are akin to statutory penalties which, prior to 1850, were recoverable in an action at law. However, Civ. Code 56.35, which also allows the prevailing plaintiff to recover costs and attorney fees does not make those sums recoverable as damages and so they are properly awarded by the court following entry of judgment on a jury verdict. The decision also notes that costs and attorney fees are recoverable only when the plaintiff proves actual damages, not when he recovers only nominal statutory damages.
California Court of Appeal, Second District, Division 1 (Currey, J.); January 3, 2019; 30 Cal. App. 5th 931