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

Rule 26 of the North Carolina Rules of Civil Procedure provides that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Although North Carolina provides a broad scope for discovery generally, medical records receive protection from the discovery process in certain instances, such as a privilege or valid objection. When a plaintiff brings a personal injury action, the medical privileges are impliedly waived with respect to pre- and post-accident medical records. Midkiff v. Compton, 204 N.C. App. 21, 33, 693 S.E.2d 172, 181 (2010). Further, a plaintiff’s ability to lodge valid objection to production of medical records is drastically limited.

Physician-Patient, Psychologist-Patient, and Counselor-Patient Privileges

The physician-patient privilege, if not waived, can limit a defendant’s ability to obtain medical records. Creating a privilege for confidential communications between patients and their physicians, N.C. Gen. Stat. § 8-53 provides:

No person, duly authorized to practice under Article 1 of Chapter 90 of the General Statutes, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon[.]

Similar privileges exist for psychologists and counselors pursuant to N.C. Gen. Stat. §§ 8-53.3 and 8-53.8.

Scope of Privilege

The physician-patient privilege extends to communications between physician and patient as well as entries in the medical records made by physicians and surgeons that include information and communication obtained by the doctor for the purpose of providing care to the patient. Roadway Exp., Inc. v. Hayes, 178 N.C. App. 165, 170, 631 S.E.2d 41, 45 (2006). The privilege does not extend to hospital record entries made by nurses or technicians unless they were assisting or acting under the direction of a physician or surgeon. Sims v. Charlotte Liberty Mut. Ins. Co., 257 N.C. 32, 38, 125 S.E.2d 326, 331 (1962).

Importantly, the physician-patient privilege and other medical privileges are strictly construed, and the patient bears the burden of establishing the existence of the privilege. Roadway Exp., Inc, at 170, 631 S.E.2d at 45. Plaintiffs are responsible for objecting to the introduction of evidence covered by the privilege. Id. at 170, 631 S.E.2d at 45.

Waiver of Privilege, Court Orders to Compel Production, and Production Period

The physician-patient privilege can be waived expressly or by implication. Mims v. Wright, 157 N.C. App. 339, 342, 578 S.E.2d 606, 609 (2003). This privilege can be waived if the plaintiff does not raise an objection based on the privilege. Id. Further, there is an implied waiver of physician-patient privilege when a patient asserts a claim, counterclaim, or defense which directly places his or her medical condition at issue. Midkiff, at, 30, 693 S.E.2d at 178 (2010).

When the privilege has not been waived, courts have the discretion to override the privilege and compel disclosure. Judges have the statutory authority to compel disclosure of medical information if in his or her opinion, disclosure is necessary to a proper administration of justice. N.C. Gen. Stat. § 8-53. Judges are granted wide discretion in determining whether disclosure of a patient’s confidential medical records is allowed. State v. Westbrook, 175 N.C. App. 128, 133, 623 S.E.2d 73, 77 (2005). When the privilege has been waived, there is no need to determine whether disclosure of medical records is necessary to the administration of justice. Lowd v. Reynolds, 205 N.C. App. 208, 214, 695 S.E.2d 479, 483 (2010).

North Carolina courts have ruled that prior medical history is relevant to establishing whether the plaintiff’s injuries were caused by the accident or a preexisting condition. Id. North Carolina courts have regularly compelled plaintiffs to produce their entire medical history for five to ten years prior to the incident giving rise to the complaint. See, e.g., Midkiff, at 35, 639 S.E.2d at 181; Spangler v. Olchowski, 187 N.C. App. 684, 654 S.E.2d 507 (2007). Medical records post-accident throughout the course of litigation are generally discoverable.

In the context of mental health and substance abuse treatment records, Plaintiffs sometimes lodge objections to production of such medical records on the grounds that the request is overly broad, unduly burdensome, irrelevant, and/or not reasonably calculated to lead to the discovery of admissible evidence. Substance abuse and mental health records are discoverable when a plaintiff makes a claim for emotional distress or mental suffering but often require a court order before they are produced. See Spangler, at 684, 654 S.E.2d 507 (2007). Facilities that provide treatment for mental health, developmental disabilities, and substance abuse “shall disclose confidential information if a court of competent jurisdiction issues an order compelling disclosure.” N.C. Gen. Stat. § 122C-54. Courts have the authority to compel disclosure of mental health records under the “proper administration of justice” analysis. State v. Williams, 350 N.C. 1, 20, 510 S.E.2d 626, 639 (1999).

Method of Production of Medical Records

Defendants can obtain medical records through written discovery requests. In lieu of producing the records, plaintiffs are permitted to provide medical authorizations for each medical provider. Medical records cannot be subpoenaed by an adverse party without a valid medical authorization. Obtaining records via a medical authorization places the cost of the medical records on the defense and tends to increase the time it takes to obtain the records.