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


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

Generally, Delaware takes a broad view of discoverability of a Plaintiff’s relevant medical history. Superior Court Rule 5 requires that “[i]n any action involving a claim for personal injuries, the defendant shall file and serve with the answer, answers to the interrogatories appearing in Superior Court Rules Form 30.” Super. Ct. Civ. R. 5(b)(1). Relating to pre-incident medical history, Form 30 interrogatory #7 provides: “[g]ive the name, professional address, and telephone number of all physicians, chiropractors, psychologists, and physical therapists who have examined or treated you at any time during the ten-year period immediately prior to the date of the incident at issue in this litigation.” Superior Court Civil Rule Form 30. Relating to post-accident medical history, Form 30 interrogatory number 2 states “[g]ive the name and present or last known residential and employment address and telephone number of each person who has knowledge of the facts relating to this litigation.” This interrogatory includes a Plaintiff’s post-incident medical treatment providers.

Rule 503 of the Delaware Rules of Evidence states “[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s mental health provider, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the mental health provider, physician or psychotherapist, including members of the patient’s family.” D.R.E. 503(b). However, “[t]here is no privilege under this rule for a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.” D.R.E. 503(d)(3).

By filing a personal injury action, the plaintiff waives the physician-patient privilege as to all medical information that is relevant to the claim. Green v. Bloodsworth, 501 A.2d 1257, 1258 (Del. Super. 1985). However, medical information that is unrelated to the claim remains privileged. Hermann v. Lane, 1988 WL 47085 at *2 (Del. Super. Mar. 31, 1988). Plaintiff’s counsel will be permitted to attend informal interviews of medical personnel. Joyner v. Casscells, 1989 WL 63963 at *1 (Del. Super. May 23, 1989).