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

In Nebraska, there are no provisions or limitations specific to a products-liability action and/or a defendant’s request for a plaintiff’s medical history (pre- or post-incident). Instead, the scope of discovery for any civil lawsuit—including one for products liability resulting in personal injury—is cabined by Rule 26, which provides in relevant part: “Parties may obtain discovery regarding any matter not privileged, which is relevant to the subject matter involved in the pending action…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Neb. Ct. R. Disc. § 6-326(b)(1).

A threshold limitation then is that the plaintiff’s medical history must be relevant in order to be discoverable. The Nebraska Supreme Court has made clear this standard “differs significantly for the relevancy test for admission of evidence at trial.” Stetson v. Silverman, 278 Neb. 389, 403 (2009). Specifically, “relevancy at the discovery stage … is construed more broadly than relevancy at trial.” Id.

A related limitation is that the plaintiff’s medical history cannot be privileged. Nebraska law generally recognizes a physician-patient privilege. See Neb. Rev. Stat. § 27-504. The statutory privilege contains an important exception, however, which waives protection “as to communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense.” Id. §27-504(4)(c). Accordingly, a plaintiff who claims personal injury “waives the physician-patient privilege as to all the information concerning the health and medical history relevant to the plaintiff has put at issue.” Vredeveld v. Clark, 244 Neb. 46, 58 (1993). Medical records or history “unrelated to the condition at issue and irrelevant to the cause of action” remain privileged, however, meaning such information is beyond the scope of Rule 26. Id.

Application of Rule 26 to specific discovery disputes are left to the trial court’s discretion and will rarely be disturbed on appeal. See Moreno v. City of Gering, 293 Neb. 320, 332 (2016). Thus, when a defendant requests a plaintiff’s medical history it should be prepared to demonstrate to the trial court why the information is relevant to the plaintiff’s claim(s). While authority specific to the proper scope of such requests is fact-specific and the result discretionary, defendants often place temporal limits on their requests to ensure relevancy and, depending on the response(s), later seek medical history extending further into the past or future.