Medical Records, Privilege and Discovery

Vol. 15 •Issue 18 • Page 20
Legal Briefs

Medical Records, Privilege and Discovery

Courts continue to struggle with the interaction between the physician-patient privilege and discovery requests. This is particularly evident in situations where someone puts his/her medical condition at issue. Generally, once a party has placed his/her medical condition at issue in a lawsuit, that party has waived his/her right to claim the physician-patient privilege. In June 2005, the Colorado Supreme Court decided in a case where the issues of privilege, discovery and waiver intersected.

The case began when GA (plaintiff) was struck by a car driven by RS (defendant). The plaintiff filed a complaint alleging the defendant’s negligence caused her to suffer from, among other things: past and future enjoyment of life; past and future pain, suffering and mental anguish; and permanent physical impairment and/or residuals. Responding to an interrogatory, the plaintiff stated that she suffered from, “lower back pain, neck and shoulder pain, chipped tooth, [and] depression” as a result of the accident. She claimed that she did not have any prior complaints or injuries to those parts of her body that she alleged the accident caused.

Complying with a discovery request, the plaintiff indicated that 10 health care providers treated her for the injuries sustained in the accident. She provided their names and a release authorizing the disclosure of those medical records. The defendant attempted to have the plaintiff authorize the release of the medical records from her family physician. The plaintiff re fused to sign a release for those records claiming they were privileged. She noted that her family physician did not treat her for the injuries caused by the accident. The defendant then served the plaintiff’s family physician with a subpoena for her medical records. While the plaintiff sought to quash the subpoena, the defendant attempted to have the court compel the production of those medical records. A hearing followed and the trial court ordered the plaintiff to produce all of her medical records from her family physician—and her pharmaceutical records for the past 10 years. The plaintiff then sought review of the trial court’s order by the Colorado Supreme Court.

The Colorado Supreme Court carefully examined the interplay between the privilege and discovery. It also considered how someone might create a waiver of the privilege, thereby opening the door to discovery of otherwise protected medical records. These issues were addressed in the context of a personal injury lawsuit.

The person holding the privilege may waive it in an express or implied manner. An express waiver occurs when a patient specifically authorizes the disclosure of his/her medical records. Alternatively, an implied waiver is created by a patient’s conduct. For example, when a party to a lawsuit “has injected his physical or mental condition into the case as a basis of a claim,” he/she creates an implied waiver. Even when there has been a waiver, it has “always been limited by the circumstances of the case, rather than amounting to consent to general disclosure of all the patient’s communication with his or her physician” observed the court.

The Colorado Supreme Court held that the plaintiff waived the privilege for the medical records regarding her “lower back pain, neck and shoulder pain, chipped tooth [and] depression.” She clearly placed those specific aspects of her medical condition at issue. However, the plaintiff did not inject her physical condition into the case to the point where she waived the privilege for all of her records from her family physician, reasoned the court, especially because the family physician did not treat her for those injuries. Likewise, the plaintiff did not waive the privilege as it related to her pharmaceutical records for the past 10 years. In reaching its conclusion, the Colorado Supreme Court held that the trial court abused its discretion and was in error when it ordered the plaintiff to produce the medical records from her family physician along with the pharmaceutical records. Such an order was too broad, observed the court.

In remanding the case back to the trial court and providing guidance for future cases, the court noted that the plaintiff should be allowed to claim the privilege. She should also provide a “privilege log,” which lists and describes the documents she claims are protected by the physician-patient privilege. If the defendant does not agree with the plaintiff regarding the privilege log, he can request that the trial court conduct an in camera (in chambers) review of specific documents from the log. The trial judge can then decide whether or not the privilege applies. Thus, the Colorado Supreme Court struck a balance between the competing interests of “the right to confidentiality in communication and the need to ascertain the truth to serve justice.”

Alan C. Horowitz is assistant regional counsel, Office of General Counsel, Department of Health and Human Services (HHS). Any views expressed herein are those of the author and do not necessarily reflect the official policy or position of HHS, the Office of General Counsel or the U.S. government.