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

Louisiana

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

Under Louisiana law, a defendant’s ability to obtain a plaintiff’s complete medical history both pre and post incident is limited to what is considered relevant to the specific claim at issue in the subject litigation. In determining what medical history is discoverable, courts must balance ensuring the privacy of the plaintiff as well as the due process of the defendant seeking to discover specific medical records and information.

Scope of Discovery

A party may obtain discovery about any matter, not privileged, that is relevant to the subject litigation. La. C.C.P. art. 1422. Information that may not be admissible at the trial of the matter may be discoverable if it is “reasonably calculated to lead to the discovery of admissible evidence.” La. C.C.P. art. 1422. Thus, the initial inquiry in most discovery disputes is whether the information sought to be discovered is or could become relevant. Discovery is usually permitted when it facilitates the basic objectives of discovery: fairness to the parties and juridical efficiency. Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So. 2d 125, 129 (La. 1983).

Discovering Medical Records

Waiving Health Care Privileges

Efforts by defendants to discover the medical records of claimants have prompted much legislative and judicial response. While hospital and other medical records normally would be privileged and not generally subject to discovery, an assertion of certain claims waives that privilege. La. C.E. 510(B). Specifically, Article 510(B)(2) provides in part that a patient waives medical records privilege when the communication relates to the health condition of:

  1. A patient who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding;
  2. A deceased patient in a wrongful death, survivorship, or worker’s compensation proceeding brought or asserted in a wrongful death, survivorship, or worker’s compensation proceeding brought or asserted as a consequence of the death or injury of the deceased patient; and
  3. The patient in any proceeding in which the patient is a party and relies upon the condition as an element of his claim or defense or, after the patient’s death, in any proceeding in which a party deriving his right from the patient relies on the patient’s health condition as an element of his claim or defense.

La. C.E. 510(B)(2)(a) to (c).  The Code contains a number of other specific waivers, based primarily upon the nature of the claim before the court. La. C.E. 510(B)(2).

Note, this privilege is not waived unless and until the patient files a lawsuit or worker’s compensation proceeding. La. C.E. art. 510. Article 510(B)(2)(a) provides that the privilege does not apply to a patient “who brings or asserts a personal injury claim in a judicial or worker’s compensation proceeding.” However, Article 510(E) makes it clear that “(t)he exceptions to the privilege set forth in Paragraph (B)(2) shall constitute a waiver only as to testimony at trial or to discovery … by one of the discovery methods authorized by” statute. Further, even after a suit is filed, a defendant may not interrogate the health care provider outside the presence of the plaintiff or his counsel or obtain the medical records without prior notice to plaintiff or his counsel. La. C.E. art. 510(E); La. R.S. 13:3715.1(B)(1).

Thus, the waiver of the privilege under these circumstances is limited to trial testimony or permitted discovery methods including (1) a plaintiff’s affirmative response to a request for release of medical record wherein the health care provider would then provide the medical records; (2) a request for production of documents, or (3) a subpoena duces tecum. La. C.C.P. art. 1421; La. C.C.P. art. 1461; see also La. R.S. 13:3715.1; La. C.C.P. art. 1469.1.

Louisiana Revised Statute 13:3751.1(B) states, in pertinent part:

B.  The exclusive method by which medical, hospital or other records relating to a person’s medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1165.1 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner:

    1.  A health care provider shall disclose records of a patient who is a party to litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, workers’ compensation, or other proceeding, but only if: the health care provider has received an affidavit of the party or the party’s attorney at whose request the subpoena has been mailed by registered or certified mail to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served on the health care provider at least seven days prior to the date on which the records are to be disclosed, and the health care provider has not received a copy of a petition or motion indicating that the patient has taken legal action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to the subpoena. No such subpoena shall be issued by any clerk unless the required affidavit is included with the request.

La. R.S. 13:3751.1(B), emphasis added. This statutory language was similarly adopted in the Louisiana Code of Civil Procedure Article 1465.1, which states:

A.  Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case of a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party.

B.  The party upon whom the request is served, within thirty days after service of the request, shall provide to the requesting party releases signed by the plaintiff or other authorized person unless the request is objected to, in which event the reasons for the objection shall be stated. The party requesting the release of medical records may move for an order under Article 1469 with respect to any objection or other failure to respond to the request.

C.  The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, if he is represented by an attorney, a copy of the request directed to the health care provider, which copy shall be provided contemporaneously with the request directed to the health care provider.

D.  The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, within seven days of receipt, a copy of all documents obtained by the requesting party pursuant to the release.

La. C.C.P. art. 1465.1, emphasis added. 

Moreover, the Louisiana Supreme Court has held that any waiver of privileged medical records “should be narrowly tailored and should extend only to information necessary and relevant to the condition relied on as a defense or claim . . . which is directly related to determining the truth.” Moss v. State, 925 So. 2d at 1201. These guidelines are intended to ensure the privacy interests of the plaintiff and the due process rights of the party seeking disclosure. Id. To ensure this balance, the Supreme Court suggested In Camera inspections, redacting highly personal and/or irrelevant matters, or allowing depositions to limited specific relevant questions, as some tools to fashion a remedy between balance privacy and due process. Id. “What is to be avoided is an unbridled evaluation of one’s complete medical records.” Id.

Examples of Limiting Discovery of Medical Records

While there is no specific set limitation on obtaining a plaintiff’s medical records medical records, a litigant seeking disclosure of a plaintiff’s medical records is limited to what is relevant to that plaintiff’s claims. Louisiana state courts and federal courts have touched on this issue.

In Prine v. Bailey, relatives of a patient who died of complications of colon cancer brought a wrongful death and survival action against a physician whom they alleged to be the patient’s primary care physician. Prine v. Bailey, 42, 282 (La. App. 2. Cir. 8/15/07); 964 So. 2d 435. Plaintiffs alleged that the physician as the patient’s primary care physician breached the standard of care by failing to recommend colorectal cancer screening. Id. at 437.

Defendant filed a motion to compel the discovery of all the Plaintiffs’ medical records and argued they were necessary to show whether some other physician was the primary care physician with the duty to recommend the screening for the patient. Id. Specifically, Defendant asked for all information regarding medical reports, records, bills, etc. with any health care provider who treated any of the plaintiffs for any reason at any time. Id. at 442. Plaintiffs’ filed an opposition asserting that Defendant wanted the entirety of Plaintiffs’ medical records as a fishing expedition that had nothing to do with whether he breached a standard of care for the deceased, and that he was not entitled to their medical records in a wrongful death action. Id. at 437.

The court found that such a request “is overly broad and will undoubtedly retrieve information completely irrelevant to the plaintiffs’ claims. Such a request could conceivably result in production of records dealing with a tonsillectomy 30 years ago. This information would have no relevance to the issues presently before the court.” The court ultimately limited the discovery to a list of the plaintiffs’ health care providers, dates of treatment, and a general description of the treatment” for the years in which the defendant was 45 years old until her death.

In Adams v. Dolgencorp, LLC, the plaintiff filed a Motion to Quash the subpoena to Plaintiff’s health insurer, Blue Cross Blue Shield. Adams v. Dolgencorp, LLC, 2012 WL 2064556, at *2 (M.D. La. June 7, 2012). The plaintiff alleged injuries to her hand, wrist, and both knees from a fall in a Dollar General store. Id. The subpoena at issue requested certified copies of any and all insurance records including medical records. Id. The plaintiff’s Motion to Quash asserted that she previously provided a complete list of her medical providers and disclosed pre-existing injuries with both of her knees. Id. The plaintiff argued that the overbroad subpoena to her health insurer would produce records that were irrelevant and duplicative. Id. The defendants claimed the records would be relevant as the plaintiff was claiming past, present, and future bodily injuries and pain. Id. The United States District Court for the Middle District of Louisiana noted that the scope of discovery in the request was broad, and “the information may be relevant to a claim or defense in this matter, or lead to relevant information”. Id. Then the court noted, “that the subpoena is for ‘any and all periods of time,’ which is simply too broad.” Id. at *3. The Court then unilaterally exercised discretion and limited the time period to three years preceding the subject accident. Id. Further, the Court ordered that all parties submit to a Joint Motion for Protective Order as there may be confidential information produced in response to the subpoena. Id. 

While this subpoena requested insurance records, it included a request for all medical records associated with any insurance claims and the court noted that the:

“Plaintiff made no such showing that she had a personal right to be protected, i.e., a privacy interest, or that the documents are subject to a privilege…” and “[e]ven assuming, arguendo, that she raised these grounds for challenging the subpoena, courts have routinely held that, by putting one’s medical condition at issue in a lawsuit, a plaintiff waives any privilege to which he may otherwise been entitled to as his privacy interest in his medical.

Adams v. Dolgencorp, LLC, 2012 WL 2064556 at *2.

Conclusion

In Louisiana, a plaintiff waives the right to privacy interests found in medical records when that same Plaintiff files a lawsuit, putting their own medical condition at issue. As such, a defendant can seek plaintiff’s medical history both pre and post incident so long as the information sought is arguably relevant to that subject incident and the Plaintiff’s alleged medical condition.