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

Patient Physician Privilege (RSMO § 491.060(5)) and Duty of Confidentiality

The physician patient privilege is designed to protect privileged patient medical information. However, this privilege is waived when the plaintiff places his or her medical condition at issue by means of pleadings filed in a lawsuit. State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. Banc 1968).

Scope of Medical Records

Defendants are not entitled to any and all medical records, only those medical records that relate to the physical conditions at issue under the pleadings. State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. Banc 1995). A defendant’s request authorization for medical records must be narrowed in scope to relate to the injuries pled and include a reasonable time frame. Unless special circumstances can be shown, the language of a defendant’s request authorization should track plaintiff’s allegation of injury in the petition. State ex rel. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997). Further, Missouri Courts have held that authorizations that do not designate healthcare providers or otherwise set any limits are impermissibly broad. Dowd, 912 S.W.2d at 465.

HIPAA

Unless a plaintiff provides a HIPAA-compliant medical authorization, defense counsel will be limited to formal discovery methods to obtain plaintiff’s records from treating physicians. In State ex rel. Proctor v. Messina, the Missouri Supreme Court held that a trial court had no authority to issue a purported HIPAA order advising the plaintiff’s non-party physicians that they may participate in informal discovery via ex parte communications with defense counsel. 320 S.W.3d 145, 157 (Mo.banc 2010). Federal HIPAA requirements set a floor and not a ceiling. Protected health information may be discoverable under HIPAA laws, but remain protected under the physician-patient privilege if the plaintiff has not placed an injury at issue in the litigation.