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

Short Answer: A defendant’s discovery of a plaintiff’s pre- and post-accident medical history is limited to records that are related to the currently claimed damages.

Generally, psychologist-client and physician-patient communications are privileged. (Mont. Code § 26-1-805, 807).

However, a plaintiff waives the privilege (as to both pre and post incident records) by commencing an action that puts their mental or physical condition at issue. (Rule 35 M.R.Civ.P).

Still, the waiver is not unlimited.

The defendant is only entitled to discover records that are related to the damages alleged in the current action. State ex rel. Mapes v. Dist. Ct. of Eighth Jud. Dist. In & For Cty. Of Cascade, 822 P.2d 91, 94-95 (Mont. 1991); Henricksen v. State, 84 P.3d 38, 48 (Mont. 2004).

Examples of records sufficiently related to be discoverable:

The plaintiff waived her privileges regarding previous medical and mental health records when she filed a negligence action against the State based on emotional distress, loss of consortium, and post-traumatic stress disorder after her son fell through an open stairwell on the defendant’s premises (a library) and suffered three skull fractures. Henricksen, 84 P.3d at 44-45; 49. The State could discover such records, but only to the extent necessary to determine whether the plaintiff’s conditions were attributable to a cause other than the current complaint. Id. at 49. The court found that her previous treatment for depression, headaches, sleep disorders, and anxiety was sufficiently connected to her present claims. Id.

The plaintiff waived his privilege regarding his mental health history when he filed a personal injury action against his employer (a Railroad) based on neurological injuries caused by exposure to various toxic substances during his employment. Mapes, 822 P.3d at 93; 94-95. The defendant could depose the plaintiff’s treating psychologist to the extent necessary to determine whether the plaintiff’s alleged cognitive defects arose from anything other than his employment conditions. Id. at 95.