Disclosure of medical records has always been a contentious issue for both plaintiff attorneys and defense attorneys alike. This is often the case when the parties are at odds over records that may reveal privileged or unrelated medical information such as mental health treatment records, drug and alcohol treatment records and HIV information. Frequently, defense counsel is unable to obtain any of plaintiff’s medical records unless the plaintiff/patient puts his or her initials in box 9(a) of the HIPAA (Health Insurance Portability and Accountability Act) authorization, permitting release of alcohol/drug treatment information, mental health information, and HIV-related information. By law, these records are medically privileged and usually beyond the scope of discovery in a personal injury case.
When a plaintiff’s attorney receives his own client’s records he is able to sift through the unrelated and potentially prejudicial privileged material. However, this causes a problem for the defense attorney who will not be able to obtain the records without the plaintiff’s permission, especially when the plaintiff’s attorney refuses to allow his client to initial the box authorizing disclosure of unrelated and privileged information. The courts are now at a crossroads as to how to deal with this situation—either protect the plaintiff’s medically privileged information and prevent defendants from accessing potentially necessary records, or strip the plaintiff of his or her right to medical privacy and give the defense potentially unrelated, yet damaging information. This article discusses this issue.
