Jeffrey P. Gale, P.A. // Obtaining Defendant’s Medical Records to Benefit Plaintiff’s Personal Injury Case

A patient’s medical records enjoy a confidential status by the right to privacy in Article I, Section 23 of the Florida Constitution. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). “Florida law, however, also recognizes that this confidentiality right is not absolute, and provides for the disclosure of medical records pursuant to subpoena in criminal and civil cases.” See Estate of Carrillo v. Federal Deposit Insurance Corporation, (S.D. Fla., 2012).

Florida Rule of Civil Procedure 1.280(a)(1) contains the basic guidance language in civil cases for the disclosure of confidential records.

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

When it comes to confidential medical records, “the right to discovery in a legal proceeding must be balanced against the individual’s competing privacy interests to prevent an undue invasion of privacy.” See McEnany v. Ryan, 44 So. 3d 245, 247 (Fla. Dist. Ct. App. 2010). In Friedman v. Heart Inst. of Port St. Lucie, 863 So.2d 189, 194 (Fla. 2003), the Florida Supreme Court instructed trial courts that in exercising their discretion to balance the competing interests, they must be guided by the principles of relevancy and practicality.

In Estate of Carrillo, the United States District Court, S.D. Florida, considered these principles in deciding whether to approve the discovery by one Defendant of the other Defendant’s medical records. The Defendants were operators of separate motor vehicles, who blamed each other for causing the crash that killed the decedent. For the purpose of uncovering any inconsistent statements with regard to the accident, and to uncover any medical information relevant to the ability to accurately perceive the accident, the Defendant was allowed to discover some of the other Defendant’s medical records.

Similarly, just this morning our firm was successful in securing a Court order allowing us to examine the medical records of a Defendant sued by our client for causing a serious car crash. We relied on the authorities cited above and others.

The Defendant has alleged that our client caused the collision by reaching over from the front passenger seat and grabbing the steering wheel and intentionally steering the vehicle into the rear of the vehicle ahead. The first time our client learned of this allegation was twenty months after the accident in response to written questions asked in the lawsuit. This account is not contained in the official accident report prepared by a trained law enforcement officer, and our client has never been approached by law enforcement at any time since the accident to discuss such a serious action. Our client claims that the charge lodged against him is fabricated by the Defendant to avoid liability.

Both our client, the Plaintiff, and the Defendant were transported from the accident scene by Fire Rescue to the hospital where lab work was performed on both of them to detect alcohol and drugs. Our client, who dated the Defendant for a number of months, has testified that while reviewing his and Defendant’s medical records after the crash, he noticed a drug screen that showed the Defendant had tested positive for several drugs that could impair the Defendant’s ability to drive. Defendant also admitted in response to written and oral questions that she was on a regimen of prescribed antipsychotic, sedative, opioid, and other mood-altering drugs at the time of the crash.

We sought Defendant’s Fire Rescue Report and the hospital records from the evening of the crash to the time of her discharge the next day. Defendant objected.

At this morning’s Zoom hearing, I argued that the relevance of the medical records to the issue of causation outweighed Defendant’s right to privacy. In particular, the absence of any reference to the steering wheel story or an altogether different account of what happened and drug use references or positive test results would be highly probative on the issue of causation. The judge agreed with us. He ordered that the records first be sent by the non-parties, the fire rescue department and the hospital, to defense counsel. Defense counsel would then redact the parts, if any, he felt were unrelated to our needs and send us the redacted records along with a privilege log indicating the nature of what was redacted. If we object to the redactions, the judge will perform an in-camera inspection of the records to determine what else, if anything, we should be allowed to see.

Judges and lawyers are always sensitive about releasing confidential medical records to adverse parties. However, when justice requires, they should be released. There must be a strong nexus between the records and meaningful issues in the case. In our case, Defendant’s medical records relate directly to the issue of causation, one of the key components in every personal injury negligence case.