Complex litigation is burdensome for all parties involved. But that burden should remain on litigants to determine what medical records relate to the lawsuit, a determination that cannot be made without looking at the plaintiff’s complete medical history. When a plaintiff initiates a lawsuit alleging personal injury, he places his PHI at issue. Illinois Supreme Court Rule 201 addresses the scope of discovery and provides “a party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action.” (emphasis added).
In Haage, the defendant made a similar but an importantly distinct argument. There, the defense presented its own protective order that authorized disclosure of “any and all PHI,” which was appropriately rejected by the court. Haage, 2021 IL 125918, ¶ 65 (emphasis added). The court noted the “relevance requirement” under Rule 201 “safeguards against ‘improper and abusive’ discovery and acts as an ‘independent constraint on discovery.’” Id. (quoting People ex rel. Madigan v. Stateline Recycling, LLC, 2020 IL 124417, ¶ 32). And Illinois law has established safeguards from improper and abusive discovery. See, e.g., Norskog v. Pfiel, 197 Ill. 2d 60, 72 (2001) (“anyone seeking the nonconsensual release of mental health information faces a formidable challenge and must show that disclosure is authorized by the [Mental Health and Developmental Disabilities Confidentiality Act].”).
However, the disclosure of a plaintiff’s basic medical records, and its relevancy to the litigation, should be determined on a case-by-case basis, by the litigants themselves, and without limitation to time. Then, once discovery has concluded, only evidence that is determined, through expert testimony or otherwise, “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable” can be admissible at trial. Ill. R. Evid. 401, 402.
Thus, while Cook County’s new HIPAA Protective Order attempts to streamline the discovery and medical records process, it places unnecessary restrictions on discovery that should be determined by the litigants.
- Under the Circuit Court of Cook County’s new HIPAA Protective Order, subpoenas for medical records must “specifically be restricted to five (5) years prior to the incident” and requests must “relate to the condition(s) and portion(s) of the Plaintiff’s body complained of.”
- This form order may restrict a defendant’s ability to properly defend allegations, implicating state due process rights, as it prohibits the “full disclosure regarding any matter relevant to the subject matter involved” as provided by Supreme Court Rules.