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Medical privilege in civil actions

You're representing Joe in a personal injury action, and the other side sends you a medical authorization for the records of Joe's treatment with Dr. Smith, his family physician of the past ten years.  But when you present the authorization to Joe, he tells you that, in addition to treating him for his back injuries, Dr. Smith also treated him for an STD a few years back.  That's guaranteed to play hell with your loss of consortium claim for Joe's wife, no?  What to do, what to do...

The first thing you might want to do is take a look at a couple of appellate decisions from last week.  Let's start with the 8th District case of Groening v. Pitney Bowes, an employment case in which Groening alleged that Pitney Bowes had discriminated against her on account of "her gender, her pregnancies, and her status as a mother and caregiver to her children."  Pitney Bowes asked her to produce her medical records, and she refused.  Pitney Bowes filed a motion to compel, and the court granted it in part, ordering Groening to produce her ob/gyn records the time between the beginning of her first pregnancy and the six-week followup after her second. 

The 1st District faced a similar situation in Cargile v. Barrow, an auto accident case in which the defendant had sought authorization for records "from Cargile's allergist, urologist, eye doctor, and a doctor who had removed a tumor from Cargile's back."  Over Cargile's objection, the trial court ordered her to produce all her medical records from the five years before the accident.

Most lawyers know that you waive your medical privilege by filing a lawsuit, but some don't realize that the waiver isn't complete; under the statute  the waiver is only to the extent that the medical records are "causally or historically related to the issues in that civil action." 

So what's a judge to do when confronted with the claim that the records shouldn't be turned over because they aren't sufficiently related?  Do what both the 8th and 1st Districts ruled:  hold an in camera inspection to decide what records should be turned over.  In fact, as Cargile points out, that's pretty much what the prior case law has held.

Neither decision is much help in providing guidance as to when medical records are sufficiently related to warrant disclosure, but that's the nature of the beast, given the stage of the proceedings:  the party asking for the records doesn't know what's in them, and the party trying to prevent disclosure isn't going to explain in a motion or brief why the records aren't relevant, because that pretty much gives away what the records contain.  Of course, this raises the possibility that attorneys will always file motions objecting to disclosure, thereby requiring the in camera inspection.  That route has perils, though, as the Cargile court points out: 

In most cases, whether asserting the privilege was reasonable will require an in-camera review--but we caution that unreasonably asserting the privilege may subject a party to sanctions by the trial court.

The flip side of the situation is presented in the 11th District's decision in Sullivan v. Smith, which I mentioned yesterday, in which it was the plaintiffs attempting to get the defendant's medical records, apparently to show that he'd been drinking at the time of the accident.  Obviously, there's no implied waiver there, since the defendant isn't the one who filed the action.  The court engages in an extensive discussion of the statute, and concludes that there's simply not enough in the record to resolve the issue.  For example, the privilege wouldn't apply if the test had been done at the request of the police, but it's not indicated who ordered the test.   The plaintiffs had also argued that public policy interests outweighed the claim of privilege.  The court distinguished the cases they'd relied on, but acknowledged that "there may be circumstances warranting discovery of such information," and that a "bright line rule" prohibiting disclosure "would hamper the liberal discovery policy contemplated by Ohio's civil rules." 

Another thing to keep in mind here:  all this isn't applicable just to personal injury cases.  This issue arises frequently in visitation and custody matters, as I discussed in this post a couple of years ago, where the courts have pretty much established a public interest rule:  psychological and psychiatric records of the parents (or the kids, for that matter) are going to come in.

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