Defendant's Ability to Obtain Plaintiff's Complete Medical History -

Colorado

What limitations exist, if any, on a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident?

A defendant is not automatically permitted to obtain a plaintiff’s complete medical history, either pre or post incident. Instead, only relevant medical records, relating to the claimed injury, are open to discovery, or where the plaintiff has waived the protection of those records.

Rev. Stat. § 13-90-107 defines privilege, and a physician-patient relationship is one such privileged relationship. The Colorado Supreme Court further elaborated how and why a patient’s medical history is protected under that statute. Alcon v. Spicer, 113 P.3d 735 (Colo. 2005).

“Privilege is defined in Colo. Rev. Stat. § 13-90-107 (2004), which prevents certain persons from being examined as witnesses in order to protect particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate. The physician patient relationship is among those relations the general assembly sought to protect. This privilege applies equally to in-court testimony and to pretrial discovery of information. Taken together, Colo. R. Civ. P. 26(b)(1) and Colo. Rev. Stat. § 13-90-107(d) establish that, even if relevant to the subject matter involved in the pending action, a party is not necessarily entitled to discovery of information from a physician relating to the treatment of a patient.” at 736.

“A patient does not make a complete waiver of the physician-patient privilege as to all medical records by making generic claims common to all personal injury lawsuits. Rather, the waiver is limited to those records relating to the cause and extent of the injuries and damages allegedly sustained as a result of the defendant’s claimed negligence.” Id.

Defendants carry the burden of establishing that the plaintiff has waived his or her privilege. It is important to note that even if waiver is established, full waiver to ALL medical records is not then implied.

One way a party can establish waiver is by showing that the privilege holder “has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense.” Id.