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

Confidentiality of personal medical information is, without question, at the core of Illinois privacy rights. Likewise, the goal of the discovery process in Illinois is full disclosure. Buehler v. Whalen, 70 Ill.2d 51, 67, 15 Ill.Dec. 852, 374 N.E.2d 460 (1977).

When it comes to medical records, defendants are afforded a wide scope if the records sought are within the federal statutory requirements of HIPAA, and of course, not for the purposes of harassing, embarrassing, or maligning the injured plaintiff.

Many times, litigants encounter circumstances where the injured plaintiff will have a relevant medical history to explore. It behooves plaintiffs to disclose relevant prior medical information and injuries. Usually, if it is remote enough, a plaintiff will assert that they were completely pain-free at the time of the newest injury. If the remote prior injury is uncovered during the later stages of litigation, the plaintiff appears to be hiding information.

Evidence of a previous injury is relevant only if it tends to negate causation or injuries. A defendant need not be the only cause to be held liable for an injury; rather, it is sufficient that the defendant is a cause. Moreover, a defendant is not relieved of liability simply because the only injury suffered by a plaintiff is an aggravation of a previous injury. Thus, for a prior injury to be relevant to causation, the injury must make it less likely that the defendant’s actions caused any of the plaintiff’s injuries or an identifiable portion thereof.” (Emphasis in original.) Voykin v. Estate of DeBoer, 192 Ill.2d 49, 57-58, 248 Ill.Dec. 277, 733 N.E.2d 1275 (2000).

Standard Illinois Rule 213 Interrogatories Pre-Occurrence Medical Treatment

 The Illinois Supreme Court Rules lay out various interrogatories that it considers to be “standard,” and therefore no party is usually within their right to object to these discovery requests. Several of the interrogatories seek information about plaintiffs’ medical history, injuries, and any previous workers’ compensation or personal injury cases. An example of the “standard interrogatories” follows:

Had you suffered any personal injury or prolonged, serious and/or chronic illness prior to the date of occurrence? If so, state when and how you were injured and/or ill, where you were injured, and/or ill, describe the injuries and/or illness suffered, and state the name and address of each physician, or health care professional, hospital and/or clinic rendering treatment for each injury and/or chronic illness.

To avoid objections, many practitioners will limit the scope of information sought to a specific time period, often within five (5) years of the accident. There is no specific limit on time frame but searching beyond five to seven years can become less fruitful. If there is a remote injury 10 years prior to the one at issue and nothing in between, it is difficult to make the connection.                   

Standard Illinois Rule 213 Interrogatory for Post-Occurrence Medical Treatment

Have you suffered any personal injury or prolonged, serious and/or chronic illness since the date of the occurrence? If so, state when you were injured and/or ill, where and how you were injured and/or ill, describe the injuries and/or the illness suffered, and state the name and address of each physician or other health care professional, hospital and/or clinic rendering you treatment for each injury and/or chronic illness.

Post-Accident records are relevant for the purposes of cutting off causation, and the same parameters apply – so long as the litigant complies with federal HIPAA regulations and other Illinois rules of evidence and discovery.

Mental Health Records

Discovery of mental health records is a much more stringent and entirely within a plaintiff’s right to maintain Mental-Health Therapist-Patient Privilege. The Illinois Mental Health and Developmental Disabilities Confidentiality Act, (Mental Health Act) (740 ILCS 110/1 et seq. (West 2018), protects a person’s rights to maintain mental health records unless the confidentiality protections afforded by the Act are waived by introducing mental condition as part of an injury claim.

The Mental Health Act provides that “[u]nless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.” 740 ILCS 110/3(a) (West 2018). Under the Mental Health Act, “`[r]ecord’ means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.” Id. § 2. Communication “means any communication made by a recipient or other person to a therapist [or] in the presence of other persons during or in connection with providing mental health or developmental disability services to a recipient.” Id. Recipient means “a person who is receiving or has received mental health or developmental disabilities services.” Id. Therapist means “a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services.” Id.

Section 10(a) of the Mental Health Act lists exceptions to the evidentiary privilege that permit disclosure. Section 10(a)(1), at issue in this case, provides that:

“[r]ecords and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court in which the proceedings have been brought, or, in the case of an administrative proceeding, the court to which an appeal or other action for review of an administrative determination may be taken, finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm.” Id. § 10(a)(1).

Standard Illinois Rule 213 Interrogatory Regarding Mental Health Injuries

Are you claiming any psychiatric, psychological and/or emotional injuries as a result of this occurrence? If so, state:

(a)          The name of any psychiatric, psychological and/or emotional injury claimed, and the name and address of each psychiatrist, physician, psychologist, therapist or other health care professional rendering you treatment for each injury;

 (b)          Whether you had suffered any psychiatric, psychological and/or emotional injury prior to the date of the occurrence; and

(c)          If (b) is in the affirmative, please state when and the nature of any psychiatric, psychological and/or               emotional injury, and the name and address of each psychiatrist, physician, psychologist, therapist or other health care professional rendering you treatment for each injury

There can be confusion when referring to mental health and emotional-type injuries because there are overlapping issues. For instance, people who sustain serious injuries and have difficult or impossible time returning to their ordinary activities of daily living can do things that would seem to implicate mental health injuries.

The Illinois Supreme Court encountered this dilemma in Reda v. Advocate Health Care, 199 Ill. 2d 47, 54, 262 Ill.Dec. 394, 765 1002 (2002). In Reda, following knee replacement surgery, plaintiff filed a complaint, alleging that he developed “an acute thrombosis of the popliteal artery in his right leg” that defendant doctors failed to timely diagnose and treat. Reda, 262 Ill.Dec. 394, 765 N.E.2d 1002. As a result of the doctors’ negligence, plaintiff “`sustained injuries of a personal and pecuniary nature.’” Id. In defendants’ subsequent interrogatories, plaintiff was asked to specify his injuries. He responded that “`[a]s a result of the occurrence, I suffered severe injuries to my leg (toes amputated and calf muscle removed) which have resulted in disability, disfigurement, pain and suffering. I also suffered a stroke, heart problems and kidney problems.’” Id. at 50-51, 262 Ill.Dec. 394, 765 N.E.2d 1002. Thereafter, defendants sought treatment records from plaintiff’s treating physicians, which the treating physicians refused to release, invoking the Mental Health Act’s privilege. Id. at 51, 262 Ill.Dec. 394, 765 N.E.2d 1002. Defendants filed a motion to compel. Id.

During discovery, plaintiff testified at his deposition to having constant headaches that he did not have prior to the surgery. Id. at 52, 262 Ill.Dec. 394, 765 N.E.2d 1002. Plaintiff’s wife also testified that following surgery, plaintiff was “`very emotional’” and “`very frustrated.’” Id. She further testified that since the surgery, “`he can be very mean, extremely mean. And I’m always at fault. I make wrong decisions, everything. It’s a hard situation. Sometimes I want to go crawl under the bed and stay there for ten days.’” Id. at 52-53, 262 Ill.Dec. 394, 765 N.E.2d 1002.

After an in camera inspection of the records, the trial court ordered disclosure. Id. at 53, 262 Ill.Dec. 394, 765 N.E.2d 1002. The appellate court, with one justice dissenting, upheld the trial court’s order, finding that disclosure was proper because plaintiff placed his mental condition at issue. Id. Our supreme court reversed, holding that plaintiff “did not place his mental condition at issue merely by claiming damages for what is a neurological injury, i.e., stroke and/or other brain damage.” Id. at 58, 262 Ill.Dec. 394, 765 N.E.2d 1002. Quoting the dissenting appellate court judge, the Reda court stated that “`[a] neurological injury is not synonymous with psychological damage * * *. Nor does neurological injury directly implicate psychological damage.’” The Reda court reasoned that

“[i]f that were true, in every case in which the plaintiff claimed damages                stemming from a physical injury to the brain, the door to discovery of the         plaintiff’s mental-health records would automatically open, and the limited exception in section 10(a)(1) of the [Mental Health Act] would effectively eviscerate the privilege.” Id.

 Finally, the Reda court also found disclosure improper because the record contained information regarding plaintiff’s injuries from several additional sources. Id. at 62, 262 Ill.Dec. 394, 765 N.E.2d 1002. Specifically, the court noted that the record contained references to plaintiff’s medical records maintained by the hospital and various physicians, which the defendants could use to “question and contest all opinions and conclusions contained therein.” Id.

With the exception of mental health treatment records, Illinois allows litigants to explore past and future medical records to the extent they are relevant to the issues involved in the case. In the event of objections, the proper resolution is through in camera inspection.