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In personal injury cases involving "only emotional distress", is a Defendant entitled to discover Plaintiff's medical records?

Gilbert, AZ |

If a Plaintiff only is claiming emotional distress symptoms (no physical injury) as their personal injury damages (heart palpitations, anger/irritability, gastrointestinal distress, nervousness, chronic stress, loss of sleep, etc.), are the Defendants entitled to discover the Plaintiff's entire medical history (dental, optometry, hospital/emergency room, medical doctors not related to psychiatrists, etc.) or only psychiatric/psychological records?

Attorney Answers 4

Posted

Technically, the physician patient privilege is waived only with regard to conditions the plaintiff has voluntarily put at issue. The trouble is that you are describing physical symptoms which you attribute to psychological distress. Defendants are probably entitled to look at medical records to see if you have any other conditions which might explain GI distress, palpitations, sleep disturbance, etc. They are also probably entitled to check to see if you had any of those complaints before the incident. If this intrudes on sensitive issues unrelated to the incident, you should discuss your options with your attorney.

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Asker

Posted

In the instance that a Plaintiff did have similar emotional distress symptoms prior to the incident, does that automatically discredit the Plaintiff's claims, or do you think a Plaintiff could suggest that the incident is an exacerbation of pre-existing emotional distress?

John M Curtin

John M Curtin

Posted

It does make proof more difficult. However, the law recognizes that some people are more vulnerable to injury due to pre-existing conditions. A man with a bad back may have a worse injury than a man with a healthy back. In that case, the claim is for the exacerbation of the condition. it is important to be honest in your claims, so that you don't discredit yourself by claiming something is a new injury when youhad pre-existing symptoms.

Posted

If the matter is in suit then you technically put your entire medical history at issue. This is an area where an attorney would bring a motion to limit the access to said medical records, or submit them to the court for an in camera review by the judge, who would then determine what records the defense is entitled to.

If the matter is pre-suit, then they only get the records you want to give them.

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being provided for informational purposes only because the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship.

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Posted

The simple answer: No.

If the defense can reasonably attribute a request to a particular issue, then they might be able to “fish” a little bit.

But, seeking completely unrelated pre-existing records will likely not be allowed.

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Posted

Thanks for the response! If a Defense attorney seeks a list of all of these unrelated pre-existing medical doctors (non-medical doctors such as optometrists, dentists, etc.) in an interrogatory question, and along with the interrogatory, sends a production request for Plaintiff to provide a HIPAA release for each of these unrelated medical providers listed in response to the interrogatory, can the Plaintiff object to listing the unrelated medical providers in response to the interrogatory? OR, would it be more likely that a Plaintiff can LIST the unrelated pre-existing providers, but choose to Object to producing a HIPAA release? In other words, for a Plaintiff who wants to object to this request, would the objection be to actually listing the medical providers in response to the interrogatory, or to producing a HIPAA release for each provider listed?

Christopher J Zachar

Christopher J Zachar

Posted

You are very welcome. If you have an attorney, your attorney should know well enough to do this for you. If not, then you refuse to sign the particular authorizations, and state your reasons for refusal in your response to the defense counsel

Posted

As the others have stated, typically yes. Again as you are claiming medical conditions resulting from the incident, the defendant has the right to investigate whether these conditions existed prior to, whether you have in the past made similar claims and resulting injuries.

The above statement does not create an attorney-client relationship and the submitting party should not consider the responding their attorney.

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