by Brent Gordon
In Sorenson v. Barbuto, 2008 UT 8, 177 P.3d 614, the Utah Supreme Court prohibited informal ex parte contacts between insurance defense attorneys and plaintiffs’ treating physicians. The supreme court directed insurance defense attorneys to “confine their contact and communications with a physician who treated their adversary to formal discovery methods.” Id. ¶ 27. The court explained that formal discovery is necessary, because physicians and insurance attorneys are not reliable sources to ensure that privileged medical communications are not disclosed during ex parte conversations. See id. ¶ 23.
Barbuto simply reiterated existing law governing the disclosure of medical information in personal injury cases: the patient-physician privilege protects from disclosure medical communications that are unrelated to the injuries at issue in a case. But what Barbuto did, was embolden plaintiff attorneys to protect privileged medical information in their clients’ medical files. Thus, S. Grace Acosta, an insurance defense attorney, recently noted a “dramatic increase in objections to subpoenas and medical releases” following the Barbuto decision. S. Grace Acosta, Are Medical Records Now Off Limits? An Examination of Sorenson v. Barbuto, 22 Utah Bar J. 3 (May/June 2009).
Plaintiffs are justified in objecting to subpoenas and medical releases that seek the disclosure of all of their medical records, because some of the records may be protected by the patient-physician privilege. Allowing insurance defense attorneys to obtain records directly from the provider “would make it impossible for a patient or a court to appropriately monitor the scope of the physician’s disclosures.” Barbuto, 2008 UT 8, ¶ 23. Discovery rules prohibit discovery of privileged matters. See Utah R. Civ. P. 26(b)(1). And a court must quash a subpoena that seeks privileged information. See id. 45(e)(3)(E).
Insurance defense attorneys do not believe it is fair to limit their examination of privileged documents, because plaintiffs and their attorneys may claim that certain records are unrelated and privileged when they are not. While this concern is legitimate, the public policy reasons supporting the patient-physician privilege outweigh the defense bar’s discovery concerns. The supreme court has previously observed, “The very nature of all privileges means that they will sometimes interfere with establishment of the whole truth.” State v. Blake, 2002 UT 113, ¶18, 63 P.3d 56.
The Acosta article proposed several procedures to alleviate the insurance defense bar’s discovery concerns. However, many of its proposals require the disclosure of privileged information. Further, the Acosta article ignored a body of well-developed Utah case law addressing the issue.
There is no need to reinvent the wheel
The Acosta article’s attempt to formulate a procedure to determine when medical records are privileged is completely unnecessary, as the Utah Supreme Court has already done so. The supreme court described its process as the most effective and sensitive balance between the interests of defendants and citizens who expect and rely on confidentiality of medical records and communications. See State v. Cramer, 2002 UT 9, ¶ 22, 44 P.3d 690. The court of appeals noted that this procedure “strik[es] a balance between the important interests of physician-patient confidentiality and the pursuit of a claim or defense.” Debry v. Goates, 2000 UT App 58, ¶ 27 n.4, 999 P.2d 582.
In State v. Cardall, 1999 UT 51, 982 P.2d 79, the supreme court held that where a defendant makes only a general request for information from otherwise privileged records, it is the plaintiff who decides what information must be disclosed. And the plaintiff’s “decision on disclosure is final. A defendant has no constitutional right to conduct his own search of the [plaintiff’s] files.” Id. ¶ 32.
When specific information is sought by a defendant (as opposed to a general request for information), a defendant must show with reasonable certainty that the plaintiff held back medical information that is not only relevant, but material to the case. If defense counsel makes such a showing, then the trial court, not defense counsel, will conduct an in camera review of those medical records. If the trial court finds that some of the records are material, then it may expose the records “only to the extent necessary to present the evidence.” See Debry, 2000 UT App 58, ¶ 26.
These Utah opinions follow the decision of the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39 (1987). In Ritchie, the United States Supreme Court rejected the argument that defense counsel should be given an opportunity to search through confidential files. The Supreme Court explained, “A defendant’s right to discover…evidence does not include the unsupervised authority to search through [confidential] files.” Id.
In State v. Blake, 2002 UT 113, 63 P.3d 56, the supreme court revisited its holding in Cardall and expounded on the procedure for determining whether records are privileged. The supreme court noted that the disclosure of privileged medical information “was limited and require[s] a showing with reasonable certainty that evidence exists which would be favorable to the defense.” Id. ¶ 19. It also explained that the showing necessarily requires some type of extrinsic evidence. See id. And it reminded trial courts that they should not grant an in camera review based on general requests for records. See id. ¶ 22.
The holdings in Cardall and Blake, which were criminal cases, are equally applicable to civil cases because the patient-physician privilege “applies to both civil and criminal cases.” Burns v. Boyden, 2006 UT 14 ¶12 n.2, 133 P.3d 370. In fact, in a civil case in which the court of appeals followed Cardall, the court noted that in criminal cases, due process concerns limit the scope of a privilege to ensure that a criminal defendant has a right to a fair trial. See Debry, 2000 UT App 58, ¶ 27 n.4. Thus, it observed that in civil cases, the exception to the patient-physician privilege could be more narrowly construed when personal liberty is not at stake.
There is no need to create from scratch a new procedure to determine whether medical records are privileged. That has already been done. Under the current system, the plaintiff is entitled to make the initial determination as to what documents are not privileged, and therefore, discoverable. Defense counsel then has an opportunity to show that the plaintiff did not produce information that was not privileged.
Subpoenas are off limits
The Acosta article’s assertion that defense attorneys can use subpoenas to obtain a plaintiff’s medical records is dead wrong. Subpoenas and medical authorizations suffer the same defects as ex parte communications, in that a plaintiff has no way of determining whether a health care provider will disclose privileged medical records if the records are sent directly to the defense attorney. There is no difference between physicians making an oral disclosure of medical information directly to defense attorneys and physicians making written disclosures directly to defense attorneys. Both forms of direct disclosure are improper.
Instead, the supreme court has held that a defendant must utilize the procedure described above to obtain medical information. In State v. Gonzales, 2005 UT 72, 125 P.3d 878, Gonzales was accused of attempted rape. Gonzales defended the action by alleging that his accuser was taking medication for a psychological issue and was “a mentally disturbed teen bent on retaliation.” Id. ¶ 11. To prove his case, Gonzales’ attorney issued a subpoena to obtain his accuser’s mental health treatment records and represented that the accuser’s psychological health was an element of a defense in a lawsuit. The state subsequently moved the court to quash the subpoena.
The trial court quashed the subpoena because Gonzales’ attorney failed to notify the other party of the subpoenas and failed to turn the records over to the court for an in camera review of the privileged information before inspecting the contents of the records. See id. ¶ 25. The supreme court affirmed the trial court’s ruling quashing the subpoena. The supreme court explained that Gonzales may be entitled to review confidential psychological records but he must “obtain them using the proper avenue.” Id. ¶ 43. The court noted that Gonzales “used a flawed subpoena process to obtain privileged records. His authority to examine [medical] records, however obtained, depended on approval of the trial court following an in camera review.” Id. ¶ 44 (emphasis added).
The law in Utah is clear: subpoenas are not allowed to discover medical records. When subpoenas are used, a plaintiff has no ability to monitor the disclosure of medical information to a defense attorney to ensure that no privileged information is improperly disclosed.
In sum, defense attorneys do not have the right to obtain medical records directly from a plaintiff’s medical providers because, by doing so, they eliminate a plaintiff’s right to monitor and control the scope of the physician’s disclosures. The supreme court enunciated a procedure to determine whether medical records are privileged. According to that procedure, the plaintiff determines whether records are privileged when the defense makes a general request for information. That determination is final unless the defense can show, with reasonable certainty, that non-privileged documents were withheld.