• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

rights about past medical info

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

G

goldenrod

Guest
Over 3 years ago I was a passenger in a car that got hit by other car running red light, speeding. A family member was driving our car (I do not drive). witnesses agreed other driver at fault; other drive has no memory of accident. I sustained most of injuries - resulting in leg surgery. Permanent injury to knee (Too young (ha) for knee replacement, they claim. Other injuries, too. Since I have MS, lawyer representing other car driver is requesting my medical infor from all my doctors from over 10-15 years ago. Never had knee trouble before, nothing to hide, but is this legal? My attorney says it is - just wondering. Oh, Yes, we live in the wonderful no-fault state of NJ! Thanks
 


I AM ALWAYS LIABLE

Senior Member
<BLOCKQUOTE><font size="1" face="Arial, Helvetica, Verdana">quote:</font><HR>Originally posted by goldenrod:
Over 3 years ago I was a passenger in a car that got hit by other car running red light, speeding. A family member was driving our car (I do not drive). witnesses agreed other driver at fault; other drive has no memory of accident. I sustained most of injuries - resulting in leg surgery. Permanent injury to knee (Too young (ha) for knee replacement, they claim. Other injuries, too. Since I have MS, lawyer representing other car driver is requesting my medical infor from all my doctors from over 10-15 years ago. Never had knee trouble before, nothing to hide, but is this legal? My attorney says it is - just wondering. Oh, Yes, we live in the wonderful no-fault state of NJ! Thanks<HR></BLOCKQUOTE>

My response:

By filing a personal injury action, plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records relating to the claimed injuries are thus discoverable ("tender of issue" exception to physician-patient/psychotherapist-patient privileges, see Ca Evid §§ 996, 1016; Britt v. Super.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 862-864, 143 Cal.Rptr. 695, 706-708

Records of "unrelated" conditions discoverable re cause of accident: Normally, information about medical conditions entirely different from the injury sued upon are beyond the scope of discovery (not "relevant to the subject matter"). However, medical records pertaining to an unrelated condition are discoverable on a showing of "good cause" if the condition is relevant to the issue of proximate causation. [Ca Evid § 999; Slagle v. Super.Ct. (Maryon) (1989) 211 Cal.App.3d 1309, 260 Cal.Rptr. 122--P's history of eye treatment discoverable since relevant to cause of auto accident ("good cause" shown by info P was blind 6 months before accident)]

Limitation--in camera review to excise irrelevant information: Even so, plaintiff may request a court-conducted in camera inspection of the medical records ordered produced pursuant to Ca Evid § 999 to ensure that information extraneous to the lawsuit (bearing neither on proximate cause nor on the injury sued upon) is not revealed. (Ca Evid § 915 only prohibits the court from requiring such an inspection in ruling on the claim of privilege.) [Slagle v. Super.Ct. (Maryon), supra (dictum)]

Where plaintiff sues for personal injuries, the physician-patient and psychotherapist-patient privileges are waived for conditions "tendered" in the action (Ca Evid §§ 996, 1016, or related to the issue of proximate causation (Ca Evid § 999). Here, plaintiff's privacy rights are subordinated to the right of discovery as to relevant medical history.

Privacy rights succumb only to directly relevant medical information: Where plaintiff sues for personal injuries, the physician-patient and psychotherapist-patient privileges are waived for conditions "tendered" in the action (Ca Evid §§ 996, 1016) or related to the issue of proximate causation (Ca Evid § 999). Here, plaintiff's privacy rights are subordinated to the right of discovery as to relevant medical history.

Privacy rights succumb only to directly relevant medical information: But this does not open up plaintiff's "lifetime" medical history. "An implicit waiver of a party's constitutional [privacy] rights encompasses only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the lawsuit." [Davis v. Super.Ct. (Williams) (1992) 7 Cal.App.4th 1008, 1014, 9 Cal.Rptr.2d 331, 335 (emphasis in original, brackets added); see Vinson v. Super.Ct. (Peralta Comm. College Dist.) (1987) 43 Cal.3d 833, 239 Cal.Rptr. 292; Britt v. Super.Ct. (1978) 20 Cal.3d 844, 143 Cal.Rptr. 695]

Thus, notwithstanding alleged "tender of issue" waiver of a physician-patient/psychotherapist-patient privilege, plaintiffs can still assert the right of privacy to prevent disclosure of confidential medical information not directly relevant to the lawsuit. The burden then shifts to the party seeking the information to establish direct relevance. [See Davis v. Super.Ct. (Williams), supra, 7 Cal.App.4th at 1017-1018, 9 Cal.Rptr.2d at 337; Hallendorf v. Super.Ct. (1978) 85 Cal.App.3d 533, 149 Cal.Rptr. 564]

I believe 15 years of past medical history is too much to ask. In most actions I have been involved, I have been successful in having a client's medical history limited to the past 5 years. Talk to your attorney about giving up the baby with the bathwater.

IAAL


------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top