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

The Maryland Rules provide that “[a] party may obtain discovery regarding any matter that is not privileged, including the existence, description, nature, custody, condition, and location of any documents, electronically stored information, and tangible things and the identity and location of persons having knowledge of any discoverable matter, if the matter sought is relevant to the subject matter involved in the action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Md. Rule 2-402(a). “The discovery rules are broad in scope and are construed liberally to accomplish their purpose.” Hayden Co. v. Bullinger, 350 Md. 452, 460 (1998). The Maryland Rules provide model interrogatories that relate to a plaintiff’s bodily injury and medical history, indicating that the discovery of certain medical and health information is discoverable. See Md. Rules, Form No. 8, Interrog. Nos. 1-5.

Maryland does not recognize the physician-patient privilege. See Butler-Tulio v. Scroggins, 139 Md. App. 122, 135 (2001). “Communications made to a physician in his professional capacity by a patient are neither privileged under the common law of Maryland, nor have they been made so by statute.” Rubin v. Weissman, 59 Md. App. 392, 401 (1984). A privilege does exist with respect to patient-psychiatrist and patient-psychologist communications, Md. Code Ann., Cts. & Jud. Proc. § 9-109, communications between a client and a psychiatric-mental health nursing specialist, Cts. & Jud. Proc. § 9-109.1, and communications between a licensed social worker and a client, Cts. & Jud. Proc. § 9-121. However, Section 4-302 of the Md. Code Ann., Health-General Article mandates that health care providers must keep the medical records of a patient confidential. Section 4-306 permits a health care provider to disclose medical records pursuant to a subpoena. Health-Gen. § 4-306; see Md. Rule 2-510 (issuing subpoenas for records). Additionally, “Maryland law does not prohibit ex parte communications ‘between a lawyer and the treating physician of an adverse party who has placed her medical condition at issue.’”  Law v. Zuckerman, 307 F.Supp.2d 705, 708 (D. Md. 2004) (quoting Butler-Tulio, 139 Md. app. at 150 (2001)).

Both paid and unpaid medical bills can be introduced in order to establish the existence or extent of a plaintiff’s damages. It should be noted, however, that a plaintiff will typically need to provide expert testimony that the plaintiff’s medical bills were reasonable, fair, and necessary for those bills to be admitted into evidence to support an award for special damages. See, e.g, Desua v. Yokim, 137 Md.App. 138, 143–44 (2001). In actions for less than $30,000 in claimed damages, medical bills produced under certain procedures prior to trial can be admitted without the support of a health care provider’s testimony as evidence of the amount, fairness, and reasonableness of the charges for the services or materials provided. See Md. Code, Cts. & Jud. Proc. § 10–104.

Maryland follows the collateral source rule, which “permits an injured person to recover the full amount of his or her provable damages, regardless of the amount of compensation which the person has received for his [or her] injuries from sources unrelated to the tortfeasor.” Lockshin v. Semsker, 412 Md. 257, 284–85 (2010). As a result, under Maryland law, the collateral source rule “generally prohibits presentation to a jury of evidence of the amount of medical expenses that have been or will be paid by health insurance.” Id. Under the collateral source rule, a plaintiff generally may seek to recover the full, reasonable value of the medical services rendered to the plaintiff. Id.; and see also Haischer v. CSX Trans., Inc., 381 Md. 119, 132 (2004). Maryland has followed the collateral source rule since 1899. See City Pass Ry. Co. v. Baer, 90 Md. 97 (1899) (holding, in a suit for injuries sustained while attempting to board a trolley car, that sick benefits received by plaintiff from a source other than from defendant were not to be considered by the jury when rendering their verdict).

“The collateral source rule prohibits a defendant in a medical malpractice action from introducing evidence that the plaintiff has or will recover his medical expenses from sources unrelated to the tortfeasor, such as a private insurer, government insurance (Medicare), liability insurance, worker’s compensation, and the like. Consequently, actual or possible recovery of medical expenses from a collateral source may not be considered in awarding damages.” Narayen v. Bailey, 130 Md. App. 458, 466 (2000). The Maryland Court of Appeals has also precluded, under the collateral source rule, the presentation of evidence as to plaintiff’s receipt of disability and retirement benefits. Eastern Shore Title Company v. Ochse, 453 Md. 303, 341 (2017).