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

Michigan codified the physician-patient privilege in Mich. Comp. Laws § 600.2157. Waiver of this privilege is controlled by an anachronistic set of statutes and case law that is rarely invoked. See, e.g., Mich. Comp. Laws § 600.2157 (waiving privilege only after the plaintiff calls a physician at trial); Mich. Comp. Laws § 600 .2912f (privilege is waived in only medical malpractice cases); Mich. Ct. R. 2.314(B) (waiving privilege when it is not timely asserted).

As a matter of practice, Mich. Ct. R. 2.302 controls the scope of discovery and requires that standard authorizations for the release of medical records be provided in initial disclosures, within 14 days of a defendant’s answer to the complaint. Mich. Ct. R. 2.302(A)(3). The authorizations must be in a form approved by the State Court Administrators Office, which contains no restrictions unless they are written into description of the released documents by either party.

Disputes over the scope of discovery requests, including any limitations included in authorizations, are controlled by Mich. Ct. R. 2.302(B)(1). While the rule historically required that discovery requests only be “reasonably calculated to lead to the discovery of admissible evidence,” rule changes in 2020 removed the “reasonably calculated” language and added the requirement that requests be proportional to the case:

Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claims or defenses and proportional to the needs of the case, taking into account all pertinent factors, including whether the burden or expense of the proposed discovery outweighs its likely benefit, the complexity of the case, the importance of the issues at stake in the action, the amount in controversy, and the parties’ resources and access to relevant information. Information within the scope of discovery need not be admissible in evidence to be discoverable.

Mich. Ct. R. 2.302(B)(1).

The changes in the scope of discovery have not led to meaningful changes in the discovery of plaintiff’s medical history. Most commonly defendants will be able to obtain a complete history from plaintiffs without limitation. Courts may impose minor restrictions, most often on the temporal scope, but those disputes are rare.

Michigan Courts have also determined that ex parte meetings with a plaintiff’s medical providers are permitted ot the extent permitted under HIPAA. Holman v. Rasak, 486 Mich. 429, 785 N.W.2d 98 (2010). As a result, a defendant can move for a qualified protective order under 45 CFR 164.508 and request meetings with providers subject to the limitations of HIPAA. Restrictions on qualified protective orders have been rejected in the absence of a showing of good cause under MCR 2.302(C). Szpak v. Inyang, 290 Mich. App. 711, 803 N.W.2d 904 (2010).