Vol. 13 •Issue 9 • Page 11
Non-Party Medical Records Revisited
Last month, this column examined a case where a Florida court of appeals refused to permit discovery of photographs of patients other than the plaintiff. In that case, the plaintiff needed photographs of other patients in a psychiatric unit of a medical center so she could identify her assailants. The appeals court quashed a lower court’s order for an in camera inspection. But, as noted previously, discovery of medical records is a fact intensive analysis with varying outcomes. Another Florida case demonstrates how the State’s highest court was willing to allow discovery of non-party patients’ records.
A maternity patient (Plaintiff) filed suit against her obstetrician (Defendant) alleging medical malpractice. The basis for her claim was that he provided negligent obstetrical care, including the use of a regular bed instead of a drop-down delivery bed. The Defendant’s alleged negligence resulted in the Plaintiff’s baby sustaining Erb’s palsy. As part of the discovery process, the Plaintiff sought copies of all of the Defendant’s “markedly obese” patients during a two-year period.
The Defendant physician characterized the pregnancy as “high risk” because the Plaintiff weighed more than 300 pounds. The Defendant used a regular delivery bed. To prove negligence, the Plaintiff sought to discover the medical records of all other markedly obese patients during a two-year period. The Plaintiff specifically requested that all identifying information from the other patients’ medical records be redacted. The trial court judge granted the request for production of documents. He ordered the Defendant to produce the redacted medical records with the Plaintiff paying the cost for retrieval, redaction and copying. The Defendant appealed the discovery order.
On appeal, the Defendant raised several legal arguments. He argued that the request was too burdensome; would compel him to create new medical records; and would invade the physician-patient relationship by requesting evidence not relevant to the pending lawsuit. The court of appeals did not agree that the request was too burdensome. However, it held that the trial court was in error because the Plaintiff failed to comply with the applicable Florida statute, the patient records were not relevant and even if they were, the confidentiality interests outweighed any relevancy. The appeals court quashed the discovery order. Next, the Plaintiff appealed to the Supreme Court of Florida.
The Supreme Court of Florida noted that different Florida district courts had reached opposite conclusions regarding the discovery of non-party’s medical records. It addressed all of the legal issues raised by the appeals court.
The supreme court first examined the statutory language. The relevant statute required, among other things, that the Plaintiff give “proper notice” to those people whose redacted medical records were sought. The court recognized the flaw in the statute: how can a plaintiff give “proper notice” to the non-party patients if the plaintiff doesn’t know who or where they are? The court cited a long-accepted legal maxim that courts should avoid a statutory construction that would lead to an absurd result. Clearly, a statutory interpretation requiring the Plaintiff to give notice to unidentified non-parties is absurd. Thus, the notice requirement of the Florida statute was held to be inapplicable in this case.
The supreme court then addressed the issue of relevancy. Again, that court noted the general rule that relevancy in the context of a discovery request is broader than in the context of a trial. Frequently, parties are allowed to discover information that is relevant but not admissible at trial. As long as the evidence may lead to the discovery of admissible evidence, it is generally permitted. So, even if the redacted medical records of the non-parties were not admissible in the trial, those redacted medical records may lead to admissible evidence. For example, if the Defendant used drop-down instead of regular delivery beds for his other morbidly obese patients and there were no neonatal complications, that leads to the question of why he failed to use a drop-down bed in this case.
The Defendant stated he relied on his experience delivering other morbidly obese women when choosing the regular bed for the Plaintiff. He further stated he encountered no complications from this method of delivery in the past. The Plaintiff argued that if the Defendant used the same method for his other morbidly obese patients and there were complications, that would demonstrate that he was on notice of the danger: the risk being foreseeable. The supreme court held it was not an abuse of discretion for the trial judge to find that the discovery request was aimed at obtaining relevant evidence.
The sole remaining issue for the supreme court was the assertion by the Defendant that the constitutional right of privacy was being invaded by the discovery request. The court disagreed. Rather, it noted that the trial judge’s order that all identifying information be redacted was sufficient to protect the privacy interests of the non-parties. Moreover, the court observed that if the redaction was insufficient, the trial judge might seal the record and allow only the attorneys and medical experts to have access to those redacted records.
Because different jurisdictions have dealt with this issue based on their respective state laws and interpretation of those laws, competent counsel should be consulted when such a discovery request is made.
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.