Scott M. Kuboff, Esq.
Northeast Ohio Trial Attorney

Understanding Your Rights

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Are You Opening Up Your Medical History By Filing A Lawsuit?

Some potential clients are concerned that they are opening up their entire medical history by filing a personal injury claim or lawsuit.   Whatever the reason, you should know that  R.C. § 2317.02 establishes several testimonial privileges that can be asserted to prevent someone with a special relationship to a party (i.e. husband or wife, attorney, clergy, etc.) from testifying in court proceedings relative to communications made to them by the party. One privilege that is codified is the physician-patient privilege. This testimonial privilege is certainly relevant in personal injury or medical malpractice cases.

Specially, R.C. § 2317.02(B) provides that physicians "shall not testify" concerning "communication made to the physician... by a patient in that relation or the physician's... advice to a patient..." unless (1) the patient has waived such privilege or (2) the request falls within one of the exceptions.

One such exception where the physician may testify is where the patient, the estate of the patient (if deceased), or the patient's guardian or legal representative files:

(1)                a medical or dental malpractice claim;

(2)                a wrongful death claim;

(3)                a worker's compensation claim; or

(4)                any other type of civil action (i.e personal injury claim).

In other words, a physician may be compelled to testify in claims where the patient's medical condition is most likely at issue. Reading this you may think that by filing a lawsuit which claims some type of personal injury that you are completely opening up your medical history - the insurance companies and defense lawyers believe this - however, that isn't necessarily true. The Revised Code also provides that a physician may be compelled to testify only related to communications or advice that are related “causally or historically to physical or mental injuries that are relevant to issues..." in the lawsuit.

For example, if you're claiming you sustained a left knee injury during a fall and you previously had your left knee operated on, those records are historically related to the injury at issue. However, if you previously saw a cardiologist, those records are not causally related to your knee injury.

With this in mind, it comes a no surprise that Ohio courts have recognized that while a defendant is entitled to discovery of matters causally or historically related to the injuries at issue, a plaintiff filing a personal injury claim does not open himself up to exposure, without limitation, of all his medical records. Moreover, Ohio courts have found that it is improper to require a plaintiff to execute "general medical records release authorizations" that are not tailored to physical or mental injuries relevant to the issues in the case.

So how are disputes resolved? While every court and trial judge is different, the majority view in Ohio is that the medical records in question should be submitted to the Court for an in camera inspection; meaning the Court will independently review the records to determine if they are historically or causally related. If so, the records will be ordered to be produced to defense counsel. If not, the plaintiff's records will remain private.

If you have been injured by the negligence of another, but are concerned for your medical privacy, contact Scott for a no cost, no obligation consultation and case evaluation.