ABA Health eSource
 July 2007 Volume 3 Number 11

Overcoming Objections to Requests for Medical Records
by James D. Walker, Stinnett Thiebaud & Remington LLP, Dallas, TX

James D. WalkerSo you've requested medical records in discovery and your opponent refuses to produce them. What do you do? This article will give you some tools to overcome that problem. 1

Sometimes your opponent will object that as a general rule, confidential communications between a physician and patient are privileged and not subject to disclosure in a civil proceeding. 2 The purpose of this physician-patient privilege is to (1) encourage the full communication between physician and patient that is necessary to render effective treatment and (2) prevent unnecessary disclosure of highly personal information. 3 Both of these statements are true, but important exceptions to the physician-patient privilege allow discovery of (1) information in suits and complaints brought by a patient against a physician; (2) information obtained through the patient's written consent pursuant to Tex. R. Evid. 509(f); and (3) communications or records relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense. 4 If any of these exceptions apply to a particular case, then use them to your advantage. Of course, records or communications not relevant to the lawsuit are still privileged and undiscoverable. 5

Your opponent or the record custodian might also object that, pursuant to the federal Health Information Portability and Accountability Act (HIPAA), individually identifiable medical information cannot be disclosed by covered entities without the consent of the individual. 6 Furthermore, your opponent may block your attempts to overcome the objection with state law citations by pointing out that "[a]s a general rule, state law that is contrary to any provision of HIPAA is preempted." 7

But HIPAA provides an exception for disclosure in response to a subpoena, discovery request, or other lawful process if the discloser receives satisfactory assurance that reasonable efforts have been made to (1) ensure the patient has been given notice of the request, or (2) secure a protective order prohibiting use or disclosure of the protected health information for any purpose other than the litigation or proceeding, and requiring return or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. 8 If you provide a written statement and accompanying documentation meeting the guidelines in 45 C.F.R. § 164.512 (e)(1)(iii) (to demonstrate notice) or 45 C.F.R. § 164.512 (e)(1)(iv) (to assert a protective order is pending), you will meet HIPAA's satisfactory assurance requirements.

HIPAA also provides an exception permitting disclosure of protected health information in response to a court order, 9 so if all else fails you may ask the court to intervene and issue an order. As always, be sure to exhaust all reasonable means available to obtain the information before requesting court intervention on a discovery matter.

Your opponent might also provide a half-hearted response to your request. For example, a Request for Disclosure includes, "in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills." 10 Additionally, plaintiffs in medical malpractice suits must provide an Authorization Form for Release of Protected Health Information in the form specified by Tex. Civ. Prac. & Rem. Code § 74.052(c). However, even with these mandatory production rules in place, you must still be vigilant; after all, these rules became mandatory for a reason. If your opponent is dragging his feet, then hold him to the fire – make a phone call requesting the medical records, follow up with a letter referencing the phone call, and be ready to file a motion to compel if necessary. Be sure to start this process well before the deadline for discovery motions in your scheduling order so that you have time to follow-through on your motion to compel.

Sometimes your opponent will cross-reference from one discovery response to another; for example, by responding to a Request for Production of medical records [why isn't ‘medical records' also initial caps? Is that correct? Please advise] [there would generally not be a document entitled Request for Production of Medical Records – It is just a Request for Production. We can change the phrase to ‘request for production of medical records' with a statement to "please see response to Request for Disclosure 194.2(j)" or even responding to a Request for Disclosure 194.2(j) with a statement to "please see the Authorization Form for Release of Protected Health Information." The result is often a vague or overinclusive response. [why?] Under Tex. R. Civ. P. 193.1, your [see Q above] opponent's "answers, objections, and other responses must be preceded by the request to which they apply." Don't let your opponent get away with anything less – insist that she amend and list all information responsive to each particular request directly after the request.

Discovery responses to requests for medical records and names of medical providers are often inconsistent – particularly after amendment by a forgetful, or wily, opponent. For example, your opponent's list of medical providers on his First Amended Responses to your Interrogatories may contain more, or fewer, medical care providers than you find in the medical bills produced in response to your Request for Disclosure 194.2(j). Don't rely on your [ditto] opponent to be accurate and comprehensive in providing medical bills; instead, take the time to go through her discovery responses and ensure that you have medical records from every medical provider disclosed in your opponent's discovery responses.

Don't rely on your opponent's fear if you want to prove your medical damages you need the medical bills and if I request them in discovery and you do not produce them then you cannot ambush me at trial with them that the medical records may be excluded at trial if they do not produce them. If your opponent disclosed the medical provider in an interrogatory response but failed to produce the records, the judge may be unwilling to punish your opponent with exclusion at trial if you did not bring the lapse to your opponent's attention in time to correct it. Instead of hoping to pull a "gotcha" at trial, create a paper trail of requests, and file a motion to compel if necessary. Then, if your opponent still refuses to produce the records, you will be able to look the judge in the eye and know that you are acting reasonably when you request exclusion of the evidence at trial.

1 This article uses Texas procedural and evidentiary rules since they are consistent with many state and federal rules.
2 Tex. R. Evid. 509(c).
3 R.K. v. Ramirez, 887 S.W.2d 836, 840 ( Tex. 1994).
4 Tex. R. Evid. 509(e)(1),(2),(4).
5 Mutter v. Wood, 744 S.W.2d 600, 601 ( Tex. 1988).
6 45 C.F.R. § 164.502.
7 45 C.F.R. § 160.203; U.S. v. Zamora, 408 F.Supp.2d 295, 299 (S.D. Tex. 2006).
8 Id.
9 45 C.F.R. § 164.512.
10 Tex. R. Civ. P. 194.2(j).