January 01, 2015

Scruples: Discovering an Adversary’s Medical Records

An examination of the ethics rules around obtaining medical records.

Michael Downey

“I’ve got another problem,” Paradox groaned, sinking into the chair opposite Ethox. “I am defending a personal injury claim where Nemesis represents the plaintiff. We needed the plaintiff’s medical records, but the plaintiff refused to execute a release.”

“So you subpoenaed the doctor’s office to get the records,” Ethox anticipated.

“Exactly. The doctor’s office mailed us the records without any hassle,” Paradox continued. “So I canceled the deposition . . . and then received Nemesis’s letter telling me that I had improperly received the medical records. Nemesis is threatening sanctions!”

“I hate to tell you, but this could be very serious.” Ethox’s response was measured.

“What do you mean?” Paradox pushed back. “Nemesis should have gotten us a release. And if we didn’t get a release, as you yourself said, we needed to subpoena the records.”

Ethox agreed. “Often the best approach is to have the plaintiff authorize medical providers to send medical records to a defendant.”

“When that does not happen,” Ethox warned, “the lawyer will generally need to send formal discovery, probably a subpoena to the medical records custodian at the health care provider.”

“That’s what we did!” Paradox crowed.

“Yes,” Ethox acknowledged, “but the key is what did—or did not—happen next. You said you received the medical records a few days later without holding the deposition?”

“Exactly,” Paradox quipped.

“In many jurisdictions,” Ethox warned, “an adversary may obtain discovery of certain confidential records—particularly medical records—only after the party whose records are sought has an adequate opportunity to object.

“When the records are sought by subpoena,” Ethox explained, “there are usually two opportunities to object. First, in writing prior to production of the records.”

“Nemesis never made a written objection,” Paradox interrupted.

“Well, but even if no objection is made in writing, Ethox said, “the plaintiff can still object at the time of production itself.”

“So you are saying that I could not get the records?” Paradox was indignant. “All these records relate to the plaintiff’s injury claims!”

“I’m not addressing whether they were discoverable or not,” Ethox responded. “What I am saying is that Nemesis’s client should have received adequate opportunity to protect what may have been privileged information . . . and thus information protected from discovery.”

“Nemesis may have planned to show up at the deposition and object to the subpoena or its scope,” Ethox continued with the explanation. “You could then have agreed on the scope, for example, or jointly decided to keep the records under seal until the court could rule on what records you could discover for our client.”

“Well, did it violate a rule when I simply received the records by mail and canceled the deposition?” Paradox persisted.

“Quite possibly. If you receive privileged records without giving the opposing party adequate opportunity to raise and litigate a privilege claim, this might constitute a violation of ABA Model Rule 4.4. In part, that rule prohibits a lawyer from ‘using methods of obtaining evidence that violate the legal rights’ of another person.”

“Is this some change brought on by the recent HIPAA amendments?” Paradox answered.

“No,” Ethox responded. “Some of the precedent on this issue goes back decades. One of the early lead cases, in fact, is Petrillo v. Syntex Laboratories, 499 N.E.2d 952 (Ill. App. Ct. 1986), an Illinois appellate court decision from almost 30 years ago.”

“So what might happen to me if I violated this principle?” Paradox voiced concern.

“Well,” Ethox answered patiently, “Nemesis might be able to disqualify our firm. Or we could face discipline—probably nothing too serious, but we need to be careful. Let’s talk about how we might be able to work with Nemesis and avoid having anything really bad happen due to this ‘minor misunderstanding.’”

Sighing, Paradox settled into Ethox’s office chair, preparing for a longer conversation.

Michael Downey

The author is with Armstrong Teasdale LLP, St. Louis. He also teaches legal ethics at Washington University School of Law.