Medical records often take center stage in a personal injury claim. But what if the defense wants to know too much? What if they’re using medical records to harass and intimidate you? Our Tampa personal injury attorneys explain releasing medical records in a personal injury claim.
Can Medical Records Be Released for a Personal Injury Claim?
When a victim seeks financial compensation through a personal injury claim, their medical records may be relevant. The records that have to do with their injuries may be released.
However, the law does not allow the defense free access to a victim’s entire medical history. For a personal injury claim, the defendant may ask for the release of medical records relevant to the lawsuit.
Are Medical Records Protected From Disclosure in Florida Personal Injury Claims?
Florida law allows for the release of medical records in personal injury claims while also protecting the individual’s right to privacy:
- The Constitution of the State of Florida contains a right to privacy. The courts have extended this right to privacy in medical records. (State v. Johnson, 814 So.2d 390, 393 (Fla. 2002)1)
- Florida Statutes § 456.057(7)(a)2 also calls for privacy in personal medical records.
- Similarly, a psychotherapist-patient privilege exists for mental health records under Florida Statutes § 90.503(2)3.
Without an exception or waiver, a party may not compel the discovery of medical records. However, the courts acknowledge that there are times where medical information is relevant to the issues in dispute. A personal injury claim is a type of case where releasing records may be fair and appropriate:
- Florida Statutes § 90.503(4)(C)4 clarifies that there are circumstances where communications about medical and emotional conditions are relevant in litigation.
- Specifically, if a party puts their condition into an issue in making a claim or defense, invasion of the right to privacy is warranted.
- Allegations of issues and calamitous events made by the other party alone are not sufficient to overcome the existence of a privilege. (Ricketts v. Ricketts, 2D19-3854 (Fla. 2nd Dist. Ct. App.)5.
When is a person’s medical condition in issue in a legal claim? When a victim alleges a bodily injury, medical records are relevant and discoverable. (Graham v. Witalec, 2011 WL 1335808 (N.D. Fla. Apr. 7, 2011)6.)
The defense may not demand access to a complete medical history using a blanket waiver. While they can ask for some medical records, the defense can only access documents that are relevant to the case.
How Do You Stop a Demand for Medical Records in a Florida Personal Injury Case?
If you receive a discovery demand for medical records in a Florida personal injury case, you must respond in some way. Do not simply ignore the discovery because courts have ruled that failing to object to a request for production constitutes a waiver and precludes objections in response to a motion to compel: American Funding Ltd. V. Hill, 402 So.2d 1369 (Fla. 1st DCA)7.
Instead, respond by stating that you object to the production of the records because they contain privileged medical information that is exempt from disclosure under Florida law.
Alternatively, you may motion the court for a protective order under Florida Rules of Civil Procedure 1.280(c)8. A party can motion to protect from annoyance, embarrassment or oppression. A Motion for Protective Order should briefly state the facts, cite F.R.C.P. 1.280(c), explain how the right to privacy applies and say that the medical records requested are not relevant to the case. File the motion with the court, prepare a notice of hearing in front of the judge and comply with notice requirements for the other party.
What Is a Motion To Compel Discovery in Florida Personal Injury?
If you object to the production of your medical records, the other side may file a Motion for Order Compelling Discovery. Under Florida Rules of Civil Procedure 1.3809, they may ask the court to require you to produce the records. You must respond to the motion, stating that the records are privileged under your privacy rights and not relevant to the case.
What if a Florida Court Improperly Grants a Motion To Release Medical Records?
If the court improperly grants a motion to release medical records in discovery, you can immediately appeal. (Brooks v. Brooks, 239 So.3d 758, 760 (Fla 1st DCA 2018)10). Going straight to the court of appeals before trial is unusual, but it may be allowed because of irreparable harm when it comes to improper release of medical records. You would file a petition for certiorari under Florida Rules of Appellate Procedure 9.10011.
Should I Release My Medical Records to the Insurance Company?
Often, the insurance company sends over a blanket waiver for medical records. They hope that you’re just going to sign and return it. Don’t make that mistake—you don’t have to release all your medical records to the insurance company. The insurance company may only get the records that are relevant to the case at hand. Typically, that means records having to do with the accident.
If the insurance company asks for records only having to do with the accident, you can agree to release them. However, if they ask for all your medical records, you should talk with a personal injury lawyer to review your options and your right to privacy.
If there is a specific reason to look at more records, the insurance company can explain how it might be relevant, like questions of causation or known pre-existing conditions. However, that does not give the insurance company the right to go pouring over piles of medical records, looking for a way to embarrass or harass you. The insurance company can only have records that are relevant to the case.
Lawyers for Medical Records in a Personal Injury Claim
Medical records in personal injury claims are important. However, you don’t have to let the insurance company use discovery of your medical records to intimidate you.
If you’ve been hurt in an accident, our personal injury lawyers can help you with all aspects of your claim, including responding to requests for medical records. Contact us today to talk about your case.
1State v. Johnson, 814 So.2d 390, 393 (Fla. 2002)
2FLA. STAT. § 456.057(7)(a) (2021)
3FLA. STAT. § 90.503(2) (2021)
4FLA. STAT. § 90.503(4)(C) (2021)
5Ricketts v. Ricketts, 2D19-3854 (Fla. 2nd Dist. Ct. App. 2020)
6Graham v. Witalec, 2011 WL 1335808 (N.D. Fla. Apr. 7, 2011)
7American Funding Ltd. V. Hill, 402 So.2d 1369 (Fla. 1st DCA 1981)
10Brooks v. Brooks, 239 So.3d 758, 760 (Fla 1st DCA 2018)