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

Iowa Rule of Civil Procedure 1.503 prohibits discovery of privileged materials in a civil case. See Ashenfelter v. Mulligan, 792 N.W.2d 665, 672 (Iowa 2010). Relatedly, Iowa Code section 622.10 provides:

“A practicing . . . counselor, physician, . . . [or] mental health professional, . . . who obtains information by reason of the person’s employment . . . shall not be allowed, in giving testimony, to disclose any confidential communication properly entrusted to the person in the person’s professional capacity, and necessary and proper to enable the person to discharge the functions of the person’s office according to the usual course of practice or discipline.” Iowa Code § 622.10(1).

However, section 622.10 does not apply “[i]n a civil action in which the condition of the plaintiff in whose favor the prohibition is made is an element or factor of the claim or defense of the adverse party or of any party claiming through or under the adverse party.” Iowa Code § 622.10(3)(a). In such case, the plaintiff must provide a legally sufficient waiver and release to allow the adverse party to make a written request for “a complete copy of the patient’s records including but not limited to any reports or diagnostic imaging relating to the condition alleged.” Id. On January 1, 2015, Iowa added mandatory initial disclosures to its Rules of Civil Procedure. Rule 1.500(b)(3) requires a plaintiff seeking recovery for personal or emotional injury – without waiting for a discovery request – to identify “the names and addresses of all doctors, hospitals, clinics, pharmacies, and other health care providers claimant consulted with within five years prior to the date of injury and up to the [date of the disclosures].” Rule 1.500(b)(4) requires the plaintiff to provide “legally sufficient waivers allowing the opposing party to obtain those records subject to appropriate protective provisions by rule 1.504.” Any party seeking to utilize such waivers must give contemporaneous notice to all parties when attempting to obtain records and must turn over any and all records obtained via such efforts.

“[T]he language of the patient-litigant exception requires that the condition of the patient be an element or factor in a claim or defense of the patient” in order for it to apply. Ashenfelter, 792 N.W.2d at 672. The statute “requires the condition be an element or factor of the claim or defense of the person claiming the privilege.” Id. (emphasis original). Iowa courts have consistently held that a claimant’s opponent does not possess an unfettered right to bring the litigant’s entire medical history into issue. Id. Thus, as referenced in the previous paragraph, a party who seeks to prevent the discovery of certain medical records may seek the entry of a protective order under Iowa Rule of Civil Procedure 1.504. Under Rule 1.504, if good cause is shown, a court may enter a protective order barring discovery “which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.” Iowa R. Civ. P. 1.504.

In general, there will likely be resistance to a request for a plaintiff’s complete medical history, both pre- and post-incident. In Iowa, privileges are narrowly construed in the discovery context. See City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11 (Iowa 2000); AgriVest Partnership v. Central Iowa Production Credit Ass’n, 373 N.W.2d 479 (Iowa 1985). “The party or person resisting discovery because of privilege has the burden of showing that the privilege exists and applies.” See id.; see also Hense v. G.D. Searle & Co., 452 N.W.2d 440 (Iowa 1990); Hutchinson v. Smith Laboratories, Inc., 392 N.W.2d 139 (Iowa 1986).

Consistent with Rule 1.500(b)(3), plaintiffs’ counsel will provide medical records release waivers allowing for defense counsel to obtain 5 years of medical records from identified providers. Because the rule identifies a period of 5 years, plaintiffs’ counsel generally resist effort to obtain medical records dating more than 5 years prior to the incident at issue. That written, there certainly may be situations where medical records dating more than 5 years prior to the incident are not only relevant but extremely important. If defense counsel desires to obtain those records and plaintiffs’ counsel resists such a request, it is incumbent upon defense counsel to seek a court order and demonstrating why those records are necessary to the defense’s efforts. Upon good cause shown by the defense, a court will enter an order permitting such discovery. As noted above, the burden falls on the plaintiff to demonstrate why the medical records older than 5 years are privileged and should be shielded from discovery.

The chances that defense counsels’ motion seeking medical records will be successful are factually specific but, in general, if the discovery relates to the injury at issue, the more likely that the discovery of older medical records will be permitted by the court. For example, if a plaintiff is claiming to have suffered a back injury as a result of an interaction with a particular product, records evidencing a history of back problems dating more than 5 years will likely be discoverable. On the other hand, if the medical records would not relate to the injury at issue, the likelihood of obtaining such records is markedly decreased. For example, if a plaintiff is claiming to have suffered a back injury as a result of interacting with a particular product, records that the plaintiff was treating for alcohol related dependency more than 5 years prior to the incident will not likely be deemed discoverable.