What if There's Sensitive Stuff in my Medical Records?

Posted by Scott A. Staples | May 16, 2019 | 0 Comments

We are very used to dealing with a world where great efforts are taken to keep our medical information and records private. Injured people who bring personal injury claims are often shocked to find out that this expectation of privacy seems to go out the window when they bring their claim.  Insurers and their lawyers are usually quite eager to dig into an injury claimant/plaintiff's medical past, and the law provides them, with certain constrains, the ability to do so. This post is merely a brief overview of a complex area of law that is subject to a number of different regulations, court rules, and appellate cases interpreting those rules.

For cases that have reached litigation, i.e. a lawsuit has been filed, the basic default position of the courts is that the plaintiff's bodily and/or mental condition is “at issue”, and the defendant has the right to obtain a certain amount of medical record/history going back some period of time before an injury, up to the present. 

The defense will usually send a very broad series of discovery requests, asking for history and documentation related to all pre and post-injury health conditions going back to birth. The courts generally do not allow discovery this broad. Most experienced attorneys know this, and the opposing sides are usually able to agree on certain parameters of disclosure based on what the court would likely decide if the dispute were to come before it. That will often involve the plaintiff agreeing to provide all or most of their medical records dating back 5-10 years before the injury.

Certain exceptions might apply to this general procedure, depending on the needs of the case.

As some consolation, just because certain medical records are “discoverable” (meaning the defense gets to see them), doesn't necessarily mean they can be used in court. A discovery request is generally proper if it is “reasonably calculated to lead to admissible evidence.” So if the records may well contain something that could be admissible at trial to give the whole picture of the plaintiff's injury history, they're likely going to need to be turned over.

But what a jury at trial gets to hear about or see is subject to the trial court's rules on the admissibility of evidence- and “admissibility” is much different than “discoverability.” For example, a plaintiff's medical records and information are never getting in front of a jury unless the judge decides the particular information is “relevant.” If the judge decides that the medical information isn't relevant to the issues being decide din the case, it stays out. Also, if it's arguably relevant, but the danger of a jury subjecting a plaintiff to unfair prejudice outweighs the information's “probative value” (i.e., relevance), then it likely also stays out. 

Finally, even if some sensitive medical information is able to be used in court, the court may be willing to shield the information from becoming part of the public record via use of a protective order, which the plaintiff's attorney would need to apply for.

About the Author

Scott A. Staples

Scott Staples came on board in 2006 as a clerk during law school, and joined the firm as an associate attorney in 2007. He was made a shareholder in the firm in 2010. Scott graduated, cum laude, from Washington State University Vancouver with a BA in English, and obtained his Juris Doctorate from Willamette University College of Law, with cum laude honors there as well. He has successfully represented clients in a variety of different types of injury cases, including auto collisions, premises liability, animal attacks, watercraft accidents, and construction site injuries. He has appeared, and won, before the Washington State Supreme Court (Weismann v. Safeco, 2012). Scott has volunteered time for the past several years at the Clark County Volunteer Lawyers Housing Justice Project. He has previously served on the new member and membership committees for the Washington State Association for Justice (WSAJ), and has acted as chair and co-chair of the WSAJ Clark County Roundtable. He is a member of the Washington and Oregon State Bar Associations, WSAJ and OTLA (state trial lawyer organizations), and is admitted to practice in all state and federal courts in Washington and Oregon. Scott was born and raised in Vancouver, attending Vancouver public schools and graduating from Hudson's Bay High School. He enjoys playing recreational basketball and softball, skiing, and spending time with his wife and three children.


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