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

Utah

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

The discovery process is intentionally broad, allowing for the discovery of any non‐privileged matter so long as the rules governing discovery are followed. The Doctor‐Patient privilege, codified in Rule 506 of the Utah Rules of Evidence, is one such privilege which limits disclosure of medical records to those which are relevant to the medical condition which is an element of any claim or defense in the proceedings.

Broad nature of the Discovery Process

The Utah Rules of Civil Procedure rule 26(b)(1) states, “Parties may discovery any matter, not privileged, which is relevant to the claim or defense of any party if the discovery satisfies the standards of proportionality set forth [in rule 26(b)(2)]. See also Rohafy v. Steadman, 2010 UT App 350, n.12, aff’d, 2012 UT 70.

Compliance with Discovery Rules

Discovery requests must be made pursuant to rule 34 of the Utah Rules of Civil Procedure. This rule requires formal requests which identify the items or categories of items sought with reasonable particularity to be served on the opposing party. Informal letters are insufficient to compel discovery under this rule. See Rohafy, 2010 UT App 350 at ¶ 10.

Documents not Within Possession or Control of a Party

Documents that are not within the possession or control of a party to the litigation are available through the subpoena process. Rohafy, 2010 UT App 350 at 12. This may extend to medical records in the possession of medical providers in other states, in which case the subpoena of the relevant jurisdiction must be followed. Id.

Doctor‐Patient Privilege

The Utah Rules of Evidence rule 506(b) states that “[a] patient has a privilege, during the patient’s life, to refuse to disclose and to prevent any other person from disclosing information that is communicated in confidence to a physician or mental health therapist for the purpose of diagnosing or treating the patient.”

Application of the Privilege

The privilege applies to “diagnosis made, treatment provided, or advice given by a physician or mental health therapist; information obtained by examination of the patient; and information transmitted among a patient, a physician or mental health therapist, and other persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist.” Utah R. Evid. 506(b)(1)‐(3).

Waiver of the Privilege

Patients who file claims of which the medical condition is an element or defense or a defense to any claim waives the privilege. Utah R. Evid. 506(d)(1). However, this waiver is limited and does not equate to consent to disclosure of the patient’s entire medical history. Sorenson v. Barbuto, 2008 UT 8, ¶ 10 (Utah App. 2006). “Rule 506 is only broad enough to allow the disclosure of information relevant to an element of any claim or defense…and restricted to the treatment related to the condition at issue” Id. Under Sorenson v. Barbuto, defense counsel is prohibited from communicating directly with plaintiff’s healthcare providers regarding the matter at issue in the litigation.