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

Our Rhode Island Supreme Court has noted, “Rule 26(b)(1) of the Superior Court Rules of Civil Procedure provides that ‘[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .’ This Court previously has indicated that Rule 26—along with the remaining provisions of the Rules of Civil Procedure pertaining to discovery—should be construed liberally so as to promote broad disclosure among parties during the pretrial phase of litigation. Henderson v. Newport County Regional Young Men’s Christian Association, 966 A.2d 1242, 1246 (R.I.2009); Robert B. Kent et al., Rhode Island Civil and Appellate Procedure § 26:3 (West 2006). In fact, our case law is clear that ‘[t]he philosophy underlying modern discovery is that prior to trial, all data relevant to the pending controversy should be disclosed unless the data is privileged.’ Henderson, 966 A.2d at 1246 (quoting Cabral v. Arruda, 556 A.2d 47, 48 (R.I.1989)).” DePina v. State, 79 A.3d 1284, 1289 (R.I. 2013).

Rhode Island statutory law does recognize a presumption in favor of medical record privacy that applies to medical history, both pre and post incident. See R.I. Gen. Laws § 5-37.3-6.1. In Rhode Island, confidential medical records shall not be subject to compulsory legal process in any type of judicial proceeding. R.I. Gen. Laws § 5-37.3-6(a). Thus, patients and authorized representatives have a right to refuse to disclose, and a right to prevent a witness from disclosing, such records. Id.

The patient-physician privilege is formed in the Confidentiality of Health Care Communications and Information Act (“CHCCIA”). R.I. Gen. Laws § 5-37.3; see also In re Doe, 717 A.2d 1129, 1132 (R.I. 1998). CHCCIA privileges are qualified, not absolute. Accordingly, when a plaintiff elects to put his or her medical condition at issue, the privilege is automatically waived. See Lewis v. Roderick, 617 A.2d 119 (R.I. 1992).

Additionally, CHCCIA does not protect medical history where a patient procures a medical report from his or her own physician and delivers the report to a third-party. Trembley v. City of Central Falls, 480 A.2d 1359, 1363 (R.I. 1984).

A healthcare provider or custodian of healthcare information may disclose confidential healthcare information in a judicial proceeding if the disclosure is made pursuant to a subpoena and certain conditions are met. The party issuing the subpoena must provide notice to the provider or custodian, and twenty (20) days must have passed, with no objection, since the individuals whose records are sought received notice of the subpoena. R.I. Gen. Laws § 5-37.3-6.1(a)(1), (2).

Absent plaintiff’s consent and statutory exception, “the party seeking disclosure may overcome [a] presumption [of medical privacy] by demonstrating a particularized need that clearly outweighs the privacy interest of the interest of the individual.” In re Doe, 717 A.2d 1129, 1133-34 (R.I. 1998).

Rhode Island Law also protects certain categories of sensitive medical information, such as sexually transmitted diseases. R.I. Gen. Laws § 23-11-9. Mental health records are afforded similar protections. R.I. Gen. Laws § 40.1-5-26. Despite these statutory protections, such sensitive medical information may be obtained by patient authorization or by court order.