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

The main limitation to obtaining a complete medical history for the plaintiff lies in obtaining pre-incident medical history. It is very rare that there are limitations to plaintiff obtaining post-incident medical history since the plaintiff has put their medical condition at issue once they file suit for personal injury.

Va. Code Section 32.1-127.1:03 recognizes an individual’s right to privacy in their health records. However, where “good cause” is shown, the law does allow an exception to this right of privacy and the individual’s records can be requested via subpoena duces tecum. An attorney may obtain plaintiff’s medical records from medical provider(s) pursuant to Va. Sup. Ct. R. 4:9(c)(2), which provides that a subpoena duces tecum may be issued to a non-party for items that are relevant to the subject matter in the pending litigation.

Therefore, the main limitation on a defendant’s ability to obtain a plaintiff’s complete medical history is the requirement of good cause. In practice, the main objection many plaintiffs argue is that the time range in the request from the defendant is overly broad and therefore the request is to harass or invade the privacy of the plaintiff. Most defendants will subpoena “all” records of the plaintiffs from a medical provider. In response, the plaintiff will make a motion to quash the subpoena, arguing that this request is irrelevant and overly broad because it will likely capture information that is private and not related to the incident.

Depending upon the facts of the case, such as whether the plaintiff has admitted to having prior injury or treatment to the body part in question, judges in Virginia rule differently. If the plaintiff has not had injury or treatment that is known at the time of issuing the subpoena, then a judge will likely limit how far back the request for records can go. If, however, the plaintiff has had prior treatment to the body part in question, then the judge is more likely to allow a request for records that are further in the past.

Generally, once the plaintiff files suit and claims injury, his medical history is put at issue and the defendant may subpoena medical records. So long as there is a basis for the request and it is not overly broad, there are few limitations to the defendant obtaining a complete medical history of the plaintiff. In addition, protective orders restricting the use of protected health information can mitigate concerns about privacy and be used to overcome objections to full disclosure of information.