Defendant's Ability to Obtain Plaintiff's Complete Medical History -

Tennessee

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

There is no specific limitation on the ability of a defendant to obtain plaintiff’s medical history specific to the Tennessee Products Liability Act as enacted in 1978. See T.C.A. § 29-28-101, et seq. However, Tennessee Rules of Civil Procedure 26.02, 34, and Rule 45 govern the discoverability of plaintiff’s medical history and associated records, and outlines a procedure for collecting the same.[1]

Tennessee Courts traditionally favor liberal discovery. The scope of discovery in Tennessee, pursuant to Tenn. R. Civ. P. 26.02(1) states, in part:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things, and electronically stored information, i.e. information that is stored in an electronic medium and is retrievable in perceivable form, and the identity and location of persons having knowledge of any discoverable matter. 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.

See Tenn. R. Civ. P. 26.02(1).

Thus, when a Plaintiff claims personal injury due to an alleged product failure or defect, a plaintiff’s medical records and medical history will likely fall under the scope of discovery as allowed in Tennessee, so long as the information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence.

In order to obtain medical records, Tennessee Rule of Civil Procedure 34, Request for Production of Documents, specifically enables a party to request medical records directly from an adverse party through a request for production of documents. See Tenn. R. Civ. P. 34.02.

The Tennessee Rules of Civil Procedure also has a mechanism for obtaining records from non-parties. Tenn. R. Civ. P. 34.03 specifically allows a litigant to compel a non-party to produce documents as provided in Rule 45 – Subpoenas—of the Tennessee Rules of Civil Procedure.

Specifically, Tenn. R. Civ. P. 45.02 states: A subpoena may command a person to produce and permit inspection, copying, testing, or sampling of designated books, papers, documents, electronically stored information, or tangible things, or inspection of premises with or without commanding the person to appear in person at the place of production or inspection. When appearance is not required, such a subpoena shall also require the person to whom it is directed to swear or affirm that the books, papers, documents, electronically stored information, or tangible things are authentic to the best of that person’s knowledge, information and belief, and to state whether or not all books, papers, documents, electronically stored information, or tangible things responsive to the subpoena have been produced for copying, inspection, testing, or sampling. See Tenn. R. Civ. P. 45.02.[2]

This rule specifically allows for the production of documents without requiring a records custodian to appear for a deposition if the person or entity responding provides an affidavit authenticating the documents produced. See also Advisory Commission Comments to the 2005 Amendment to Tennessee Rule of Civil Procedure 45.02.

So long as requested medical records are relevant to the litigation, or are calculated to lead to the discovery of relevant, admissible evidence, the records may be obtained, and, generally, no provision of Tennessee’s Product Liability Act or case law prohibits collection of the same.

The inquiry does not end here, however. A party wishing to introduce or use the records obtained at any hearing or trial on the matter must comply with the provisions of T.C.A. § 24-7-122, which states:

Medical records.

(a) As used in this section, medical records means all written clinical information that relates to the treatment of individuals, when the information is kept in an institution.

(b) Medical records or reproductions of medical records, when duly certified by their custodian, physician, physical therapist or chiropractor, need not be identified at the trial and may be used in any manner in which records identified at the trial by these persons could be used. The records shall be accompanied by a statement signed by the person containing the following information:

   (1) The person has authority to certify the records;

   (2) The copy is a true copy of all the records described in the subpoena; and

(3) The records were prepared by the personnel of the company acting under the control of the company, in the ordinary course of business.

(c) When records or reproductions of records are used at trial pursuant to this section, the party desiring to use the records or reproductions in evidence shall serve the opposing party with a copy of the records or reproductions no later than sixty (60) days before the trial, with notice that the records or reproductions may be offered in evidence, notwithstanding any other rules or statutes to the contrary.

By the plain terms of the statute, so long as the party provides notice of intent to use medical records previously obtained, and such medical records comply and are certified in accordance with the provisions of T.C.A. § 24-7-122(b)(1-3), then the records are, ostensibly , admissible. However, in Goodwin v. Hanebis, the Tennessee Court of appeals upheld the trial court’s exclusion of medical records submitted with an affidavit that complied with T.C.A. § 24-7-122(b)(1-3). However, the affidavit did not comply with Tennessee Rules of Evidence 902(11) and 803(6). See Goodwin v. Hanebis, No. M201701689-COA-R3-CV, 2018 WL 4145889 at 4 (Tenn. Ct. App. 2018).

The Goodwin court also held that records, submitted to the court from a different provider and accompanied by an affidavit that complies with the Rules of Evidence and the statute, were admissible into evidence, if the Rules of Evidence as to relevancy tests were satisfied.

Therefore, when obtaining medical records of a plaintiff in a products liability action, attorneys should ensure that the responding party provides an affidavit which satisfies the requirements of T.C.A. § 24-7-122(b). In addition to the requirements found in that statute, parties must also insure that any affidavit attached to medical records complies with Tennessee Rule of Evidence 902(11) which allows the introduction of original or duplicates of a domestic record of regularly conducted activity if such records are accompanied by an affidavit of its custodian or other qualified person certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of and a business duty to record or transmit those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice.

Thus, while there are not any specific limitations place on the ability of a defendant to obtain plaintiff’s complete medical history, the general concerns of admissibility and relevance may impact issues at trial. Most current subpoena forms do contain appropriate HIPPA language giving notice of the time to object to the subpoena, and allow for sufficient time for the plaintiff to do so. Finally, whether appropriate or not, generally, all healthcare providers request some form of HIPPA compliant records waiver prior to the production of documents.

 

[1] Other limits on the ability to obtain Plaintiff’s medical history and associated records may be imposed by HIPAA

[2] (Importantly, any subpoena served under the provisions of this rule must be served on all other parties to the litigation).