Defendant's Ability to Obtain Plaintiff's Complete Medical History -
What limitations exist, if any, on a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident?
A defendant’s ability to obtain plaintiff’s complete medical history is governed by Pennsylvania Rule of Civil Procedure 4003.6 which provides, in part, “[i]nformation may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.” Pa.R.Civ.P. 4003.6. Methods of recovery include issuance of subpoena pursuant to Rules 4009.21-27.
A patient’s medical records are generally subject to both federal and state protections of their right to privacy. In Pennsylvania, Article 1, Section 8 of the state constitution has been found to include an expectation of privacy in a patient’s medical records. In tort cases, where a patient has not authorized disclosure of medical records, this right to privacy is qualified. In these instances, a patient’s privacy expectations are considered reduced to the extent he could anticipate reasonable inquiry and investigation to be made of his claims. This limitation may still result in protection of otherwise discoverable medical treatment records.
Medical records may be ordered by the court to be disclosed pursuant to subpoena or court-order where the need for disclosure outweighs the harm to a patient’s privacy. Pennsylvania has an established a balancing test by considering the following factors to determine whether an individual’s medical information may be disclosed without permission:
The factors which should be considered in deciding whether an intrusion into an individual’s privacy is justified are the type of record requested, the information it does or might contain, the potential for harm in any subsequent nonconsensual disclosure, the injury for disclosure to the relationship in which the record was generated, the adequacy of safeguards to prevent unauthorized disclosure, the degree of need for access, and whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access.
Buckman v. Verazin, 2012 PA Super 216, 54 A.3d 956, 961 (2012) (citing Stenger v. Lehigh Valley Hosp. Center, 530 Pa. 426, 609 A.2d 796 (1992)).
A degree of need for access may be established upon a showing that the records are considered necessary to establish an element of plaintiff’s claims. This need will not be established where the evidence is deemed irrelevant. Under Pa.R.E. 401, “relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of action more or less probable than it would be without the evidence.”
One safeguard which should be in place to support disclosure of medical records without violation of privacy rights is existence of a protective order limiting the use of the records entered. Where a defendant seeks medical records pursuant to subpoena, the patient has standing to apply to the court where the action is pending to deny, restrict, or otherwise limit access to and use of the records. 42 Pa. Stat. and Cons. Stat. Ann. § 6155 (West). Generally, a patient may also seek a protective order for objectionable discovery by establishing good cause for protection from unreasonable annoyance, embarrassment, oppression, burden or expense under Pa.R.Civ.P. 4012. Even if a valid need for medical records has been established by a defendant, a court may determine that the absence of a safeguard, namely a protective order, would preclude the defendant’s access to these relevant records.
The most pressing limitations to recovery of a plaintiff’s medical history are establishing the relevance of those records to the claims sought and safeguards in place, such as a protective order, to ensure protection of a plaintiff’s right to privacy.
Regarding the discoverability of a plaintiff’s mental health records, Pennsylvania courts consider the plaintiff’s specific claims and allegations in the complaint relating to an accident causing a mental condition and the defendant’s causation defenses. To the extent the plaintiff directly places a mental condition at issue by making allegations of anxiety, mental injury, severe emotional trauma requiring treatment, or similar specific psychiatric/psychological conditions as a result of the accident, the plaintiff may be deemed to have waived the protections of Pennsylvania Mental Health Procedures Act (50 P.S. § 1701, et seq.) and the psychiatrist/psychologist-patient privilege (42 Pa.C.S.A. § 5944), and the mental health records may be discoverable. See Boyle v. Mine Line Health, Inc., 2022 WL 96613 (Pa. Super. January 10, 2022) (non-precedential slip opinion) (citing Gormley v. Edgar, 995 A.2d 1197 (Pa. Super. 2010)). If a plaintiff makes general averments of emotional pain and suffering, embarrassment and mental distress, it is less likely that mental health records will be discoverable. See Tavella-Zirilli v. Ratner Companies, L.C., 266 A.2d 696 (Pa. Super. 2021), discussing Gormley, supra.
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