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

At the outset, the plaintiff’s complete medical history should be relevant to the incident at hand. Hawaii Rules of Evidence Rule 401 states that “relevant evidence” means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” HRE Rule 401.

In Hawaii, there is a Constitutional right of privacy, and a physician-patient privilege that may protect a plaintiff’s medical information.

Constitutional Protection

Hawaii recognizes a Constitutional right of privacy protecting discovery of a person’s medical information. The Hawaii Constitution in Article I, section 6 provides in relevant part that “[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.” In promulgating this privacy provision, the 1978 Constitutional Convention intended “that privacy [be] treated as a fundamental right for purposes of constitutional analysis.” Comm. Whole Rep. No. 15, in 1 Proceedings of the Constitutional Convention of Hawaii of 1978 (Proceedings), at 1024.

This express right of privacy is “a recognition that the dissemination of private and personal matters, be it true, embarrassing or not, can cause mental pain and distress far greater than bodily injury . . . In short, this right of privacy includes the right of an individual to tell the world to ‘mind your own business.’” Stand. Comm. Rep. No. 69, in 1 Proceedings at 674.

Article I, section 6 of the Hawaii Constitution, applies to “informational privacy” and protects “the right to keep confidential information which is highly personal and intimate.” Brende v. Hara, 113 Hawai‘i 424, 430, 153 P.3d 1109, 1115 (2007)(quotation marks and brackets omitted). Because health information is “highly personal and intimate,” it is protected by the informational prong of article I, section 6. Id.

Physician-Patient Privilege

In addition, a patient’s communications with his or her physician are confidential and privileged under the Hawaii Rules of Evidence Rule 504. “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 oneself, the patient’s physician, and persons who are participating in the diagnosis or treatment under the direction of the physician, including members of the patient’s family.” HRE Rule 504(b).

“A communication is ‘confidential’ if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient’s family.” HRE Rule 504(a)(3).

The physician-patient privilege of HRE Rule 504(b), codified in Hawaii Revised Statute Chapter 626, is “[d]esigned to encourage free disclosure between physician and patient[.]” HRE Rule 504 Commentary. The privilege, “as with other statutory privileges, is a legislative balancing between relationships that society feels should be fostered through the shield of confidentiality and the interests served by disclosure of the information in a court of law.” Parkson v. Central DuPage Hospital, 105 Ill.App.3d 850, 61 Ill.Dec. 651, 435 N.E.2d 140, 143 (1982). “The information in [non-party] patients’ records . . . deserves the protection of confidentiality that the legislature envisioned.” Id. “[T]o allow the disclosure of communications involving patients who are not parties to the litigation would neither serve a public interest nor the private interests of those non-party patients.” Id.

However, “[t]here is no privilege under this rule as to a communication relevant to 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.” HRE Rule 504(d)(3).

HIPAA

The Health Insurance Portability and Accountability Act (“HIPAA”) “establishes national privacy standards and fair information practices regarding health information. As to judicial proceedings, HIPAA applies only to the parties involved in the proceeding and to health information received directly from health care entities.” Brende v. Hara, No. 27964 (Hawaii 11/27/2006) (Haw. 2006). The act is a “federal floor of privacy protections that does not disturb more protective rules or practices. . . . The protections are a mandatory floor, which other governments and any [Department of Health and Human Services regulated] entities may exceed.” 65 Fed. Reg. 82,462 (Dec. 28, 2000). In Hawaii, a medical information protective order issued in a judicial proceeding must minimally provide HIPAA protections. Issuance of a medical information protective order in excess of HIPAA protections may be issued “for good cause shown” “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Hawaii Rules of Civil Procedure Rule 26(c).

AIDs, HIV, and AIDs-related Complex

Medical records that relate to a person’s human immunodeficiency virus infection, acquired immune deficiency syndrome (“AIDS”), or AIDS-related complex, receive special protection under Hawaii law. In particular, Hawaii Revised Statute § 325-101 states that such medical records are to be strictly confidential and only shall be released under limited circumstances, for example pursuant to a court order, after an in camera review of the records, upon a showing of good cause by the party seeking release of the records, and other reasons specifically stated in the statute.