Brian Mardon & Stephen Iannacone ()
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.
Waiver and Disclosure
Medical records are one of the most recognized forms of privileged information, as communications between a patient and physician are confidential. While the plaintiff waives the physician-patient privilege on the mental or physical injuries and conditions at issue in his or her lawsuit, they do not waive that privilege with respect to unrelated illnesses or treatments.1 Once the defendant demonstrates that the records being sought relate to claims in the lawsuit, they must still obtain a written waiver of the privilege. Only the patient or authorized representative may waive the privilege to permit disclosure, as it is personal to the patient.2 This information cannot be waived by another party or an attorney.
Since the principle of “full disclosure” does not give the defendant a right to unfettered and uncontrolled disclosure, the question arises: Does the plaintiff have to initial box 9(a) of the HIPAA authorization allowing the disclosure of alcohol/drug treatment, mental health information, and HIV-related information when these potential medical conditions are not at issue in the lawsuit?
The developing body of case law in this area holds that the plaintiff does not have to initial box 9(a) to disclose this information.3 In Budano v. Gurdon, the plaintiff executed a HIPAA authorization form, but declined to check the boxes on the form permitting inspection of records relating to alcohol and drug treatment, mental health and HIV-related information.4 The lower court ruled, and the First Department unanimously affirmed, that plaintiff could not be compelled to check the boxes on the HIPAA form as the defendant was not entitled to the records.5
The court also stated that where a defendant cannot show that these types of records are relevant to plaintiff’s accident-related injuries, then the defendant is in no way entitled to receive these medical records.6 Even if alcohol/drug treatment information, mental health information, and HIV-related information records exist, they are, absent extraordinary circumstances, unrelated to plaintiff’s injuries and are thus privileged and confidential.7
Even in those circumstances where a plaintiff suffered from an addiction, HIV and/or a mental illness, if there is no evidence establishing a direct connection between those conditions and the cause of the accident or plaintiff’s ability to recover from the injuries related to his or her lawsuit, the court will not allow these privileged records to be produced during discovery.8 The courts have steadfastly refused to consider unsubstantiated claims that plaintiff’s chemical dependency or mental illness caused the accident as grounds for vitiating privilege, even though such claims are often asserted during discovery.9
Occasionally, defendants have made the vague and overbroad argument that the plaintiff has put his or her mental condition in controversy by claiming loss of enjoyment of life or that an addiction and HIV information is necessary to calculate plaintiff’s life expectancy and, thus, should avail defendants entitlement to these records. However, courts have been very firm in rejecting this line of argument where the plaintiff does not affirmatively put his or her mental condition into issue with claimed injuries such as post-traumatic stress disorder.10 This is particularly so where plaintiff’s claim of loss of enjoyment of life is limited to his or her physical injuries resulting from the accident.11
During the past year, the First Department ruled in Alford v. City of New York, that claims for “loss of enjoyment of life,” relating solely to his claimed physical injuries, did not warrant disclosure of substance abuse and mental health treatment information, since its relevance had not been shown.12 Courts have even gone a step further by limiting any negative inference by plaintiff’s refusal to allow discovery of these types of records.13 It is evident that New York courts still defer to the underlying privacy rights of plaintiffs. Without proof of a connection with the types of records sought and the accident-related injuries, the court will not allow a fishing expedition of these records if defendant cannot show plaintiff’s condition somehow related to the accident.14 However, this does not resolve every issue that arises.
The question remains, what can a defense attorney do to represent his client’s best interest in challenging the plaintiff’s injury claims? Some courts have allowed defendants to provide evidence, such as medical affidavits, demonstrating that the desired alcohol/drug treatment records, mental health records, and HIV-related records relate to plaintiff’s ability to recover from his or her accident-related injuries or prognosis of future enjoyment of life.15 There are still certain courts that have been receptive to the claim that a plaintiff places his or her entire medical condition at issue if they make “broad allegations of physical injury and mental anguish” as contained in the complaint, but there appears to be a growing reluctance to indulge fishing expeditions predicated on this claim.16
In Camera Inspections
Some judges have become more sympathetic to a defense attorney’s struggles in getting medical records related to pertinent injuries when medical facilities are reluctant to release any records without having box 9(a) of the HIPAA authorization initialed by plaintiff. In an attempt to ease the burden on defendants and prevent release of possibly prejudicial and non-discoverable records, we are now seeing more judges require an in camera inspection of the records when there appears to be some basis for the defendant’s discovery demands.17 In these cases, the court will compel the production of such records by making the plaintiff initial box 9(a) and having the records released directly to the court where there will be an in camera inspection to determine if defendants are entitled to these records.
The problem with this result is that the plaintiff is ultimately being forced to give up his privacy right to privileged medical records that may not have anything to do with the alleged injuries, either physically or emotionally. Furthermore, these in camera inspections can be a tremendous burden on the court and counsel, requiring large expenditures of time and money. Particularly vexing can be when the records are sent to court in a digital format that the court lacks the facility to view or print.
In the future, it is likely that the court will only make limited use of in camera inspections, confining their use to cases where the defendant has shown a likely entitlement to records that are not cumulative or duplicative. A more commonplace remedy may be a court directive to the plaintiff’s counsel to provide redacted copies of the records in their possession. The only certainty is that the ongoing struggle between liberal disclosure and protection of privacy rights will continue to cause new and unusual problems for the personal injury litigator into the foreseeable future.
1. Romance v. Zavala, 98 A.D.3d 726 (2d Dept. 2012); Budano v. Gurdon, 97 A.D.3d 497 (1st Dept. 2012) (failure to prove plaintiff’s mental and physical condition was in controversy, as required to compel release of plaintiff’s medical records); Rothstein v. Chihee Huh, 60 A.D.3d 839 (2d Dept. 2009); Wojtusiak v. Elardo, 43 A.D.3d 436 (2d Dept. 2007); Carboni v. New York Medical College, 290 A.D.2d 473 (2d Dept. 2002); Kohn v. Fisch, 262 A.D.2d 535 (2d Dept. 1999); Levine v. Morris, 157 A.D.2d 567 (1st Dept. 1990); Burch v. Gould, 149 A.D.2d 784 (3d Dept. 1989); Mancinelli v. Texas Eastern Transmission, 34 A.D.2d 535 (1st Dept. 1970).
2. Muniz by Tirado v. Preferred Associates, 189 A.D.2d 738 (1st Dept. 1993); Dillenbeck v. Hess, 73 N.Y.2d 278 (1989); Sibley by Sibley v. Hayes 73 Corp., 126 A.D.2d 629 (2d Dept. 1987).
3. Budano, 97 A.D.3d 497; Del Terzo v. Hosp. for Special Surgery, 95 A.D.3d 551 (1st Dept. 2012).
4. Budano, 97 A.D.3d at 498.
5. Id. at 499.
6. Id. at 498; See e.g., Del Terzo, 95 A.D.3d 551; Wojtusiak, 43 A.D.3d 436; Churchill v. Malek, 84 A.D.3d 446 (1st Dept. 2011); Salazar v. 521-533 W. 57th St. Condo., 84 A.D.3d 927 (2d Dept. 2011); McFarlane v. Cnty. of Suffolk, 60 A.D.3d 918 (2d Dept. 2009); Calendar v. Mnasin, 23 A.D.3d 509 (2d Dept. 2005).
7. Budano, 97 A.D.3d at 498-99.
9. Id.; Churchill, 84 A.D.3d 446 (1st Dept. 2011); Alford v. City of New York, 116 A.D.3d 483 (1st Dept. 2014).
10. Rahman v. Pollari, 107 A.D.3d 452 (1st Dept. 2013); Cheek v. Cnty. of Nassau, 23 A.D.3d 599 (2d Dept. 2005); Sternberger v. Offen, 138 A.D.2d 480 (2d Dept. 1988); D’Alessio v. Nabisco, 123 A.D.2d 816 (2d Dept. 1986); Budano, 97 A.D.3d 497; Churchill, 84 A.D.3d 446; Salazar, 84 A.D.3d 927; Wojtusiak, 43 A.D.3d 436; Calendar, 23 A.D.3d 509; Alford, 116 A.D.3d 483; Del Terzo, 95 A.D.3d 551.
11. Alford, 116 A.D.3d at 484.
13. Rahman, 107 A.D.3d 452 (ruling that plaintiff’s refusal to provide certain HIV-related records or authorizations is not an admission that such records exist).
14. Budano, 97 A.D.3d at 499.
15. Id. At 499; Alford, 116 A.D.3d at 484.
16. Farrell v. E.W. Howell, 103 A.D.3d 772, 773 (2d Dept. 2013); Graziano v. Cagan, 105 A.D.3d 701 (2d Dept. 2013); Moreira v. M.K. Travel & Transp., 106 A.D.3d 965 (2d Dept. 2013).
17. Donald v. Ahern, 96 A.D.3d 1608 (1st Dept. 2012); Zappi v. Pedigree Ski Shop, 244 A.D.2d 331 (2d Dept. 1997); Garcia v. 145 Edwards, 2012 NY Slip Op 30401(U); Martin v. Martelli, 554 N.Y.S.2d 787 (Sup. Ct. Erie Co. 1990).