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My understanding is that medical records are legally privileged. What does this actually mean? Can they ever be required by a court to be disclosed under any context, or for any reason? (e.g. if demanded by another party during discovery?) Does it make any difference whether the court requesting the materials are in a different jurisdiction from that in which they were produced or generated?

What if the medical records are required to be submitted by their subject for some other governmental process for them to obtain some desired bureaucratic outcome, and then copies of then become included in the records of those processes? Can they then be subpoenaed from that governmental body as records of the undertaken bureaucratic process?

Interested in the answers to this in any common law jurisdictions.

3 Answers 3

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Yes in general

Generally, almost all western jurisdictions (be they civil law or common law) have some way to get medical records into evidence, be that via subpoenaing, or by discovery requests or court orders.

In most cases, the party that brings the suit is also the patient or their legal representative, and they give (or imply) consent to the use of the records. And in cases where the defendant's medical records are required, usually, the defense wants those in too to prove some condition. And then there are cases where the state or their representatives brings the charge. They usually can bring a warrant or court order to obtain the documents.

Then there are Medical records that had been made specifically on the behest of the state. Here, the warrant is usually filed to obtain the samples or access to the body to be investigated, the record itself forms the basis for the investigators to proceed - and is not under client-doctor confidentially in the first place. It had been made specifically for the state and it is a state-owned medical record, be they made on request of the executive power (police) with a warrant signed by a judge or on behalf of the judicative after a court order to evaluate capacity (see below).

However, medical records can generally only be obtained if the records are relevant to the case at hand and only to the degree necessary: You can't request the medical records about a person's fertility status in a case that discusses damages for his broken arm. As a result, the medical record available in court might be only an extract from the original, with irrelevant passages sealed or redacted.

Unlike many people think, it's quite common to get some medical records into court in some way or another:

As the basis of injury cases

If you have a case of physical injury, the injuries themselves need to be proven in court. This is done generally by getting the medical records - thus they can be subpoenaed by a party, usually the injured party here. Then a medical expert can discuss them, be they a court-appointed one or paid by either of the parties.

In this category also fall mandatory reports of certain types of wounds or situations. As such, the treating doctor has to provide a medical report with enumerated types of injuries, like bullet wounds or where child abuse might be the reason.

Very necessarily in malpractice cases

Malpractice is pretty much injury on steroids: the injuring party made the records and would never want to give them up to the one suing them - if they could.

Alice shall remove Appendix. It goes haywire and the day after Charly needs to cut Bob open again. Now Bob sues Alice for malpractice. Bob needs medical records from both Alice, the doctor who botched it, and Charly, who was fixing Alice's error. Generally, both records are subpoena-able to the degree relevant and necessary, and indeed the opposing medical opinions on the operation and records form the very basis of the case for either side.

Without the ability to subpoena the - in this case unmodified - records from the injuring doctor, proving - or defending - a case of malpractice would be impossible: the very truth of the allegation should be in the medical records.

It's routine in cases around death

What is the very last medical record a person can ever get? An autopsy record! That's a very sensitive medical record, but they routinely are used in homicide cases. Oftentimes, the investigators also subpoena the medical records of the victim from their doctors to corroborate the autopsy record, while the defense might subpoena them to try and disprove it.

Even in civil cases, like the OJ-Simpson civil damages case, autopsy and medical records from an accompanying criminal case can and will be "pulled" (copied over) from the other trial's docket.

Regularly in child protection cases

Whenever child protection is on the line, be them protective orders or who a child will live with after the child protection service (whatever its name is) is in on a case, then medical records are often required to bolster one side. Those records could be medical records from quite many doctors, be they physicals or psychological evaluations...

Sometimes the medical records required here are only created due to court-ordered medical or psychological evaluation by a doctor.

Whenever incompetence defense is called

When the lawyer claims temporary incompetence or insanity, courts generally order a psychological evaluation. These medical records are evidence, but usually don't need to be subpoenaed: they have a waiver form to be disclosed to the court almost built-in.

Are they available to the public?

Medical records are part of truth-finding, but they are also quite sensitive. As a result, most medical records can not be gotten from the court and enter the dockets under seal. Another option is, that they enter the docket partially or even mostly redacted, with passages blackened.

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  • But... Otherwise than these scenarios which you offer, is it no?
    – Joseph P.
    Aug 12 at 14:24
  • Also, what jurisdiction are we talking about here?
    – Joseph P.
    Aug 12 at 14:25
  • @JosephP. no, otherwise it is still a Yes, this is generally true in all western jurisdictions: if the medical records are relevant, they are either discoverable or subpoenaable. If you claim "This woman isn't right in her head and can't care for her kids" you need to discover or subpoena a medical opinion from a doctor that is allowed to give such an opinion.
    – Trish
    Aug 12 at 14:29
  • The key legal point that makes the records available is the implied waiver of doctor-patient privilege that is made by a patient who brings suit. There is a fine issue of whether mental health records are also subject to an implied waiver of privilege any time that emotional distress is claimed - in Colorado the rule is that there is a waiver as to mental health records only when the emotional distress claimed is different that what someone without a mental health condition would experience. A different kind of waiver applies in probate cases where capacity to write a will is in question.
    – ohwilleke
    Aug 12 at 20:02
  • @ohwilleke The patient who brings the suit or their descendants. Or of course, the state.
    – Trish
    Aug 12 at 20:04
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Although the question is tagged the criminal procedure may be of interest...

Medical records are not legally privileged.

They are what's called "excluded material" under section 11 of the Police and Criminal Evidence Act 1984 (PACE):

  1. Meaning of “excluded material”.

(1)Subject to the following provisions of this section, in this Act “excluded material” means—

  • (a)personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence;

  • (b)human tissue or tissue fluid which has been taken for the purposes of diagnosis or medical treatment and which a person holds in confidence;

  • (c) [...] (not relevant here)

(2)A person holds material [...] in confidence for the purposes of this section if he holds it subject—

  • (a)to an express or implied undertaking to hold it in confidence; or

  • (b)to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in an Act passed after this Act.

(3) [...]

These may be obtained and, if relevant, used in evidence by either search warrant or production order application made under section 9 and Schedule 1, para 3 of PACE

However, unlike "regular" PACE warrants which go before a magistrate, applications for Excluded Material go before a circuit judge for a higher level of oversight.

If, once obtained by the police under a warrant or production order, the records are not used in evidence there are safeguards in place to protect the confidentiality of the medical records. But, depending on the particular circumstances and facts in issue, they may be liable for disclosure to the defence if certain conditions in the Criminal Procedure and Investigations Act 1996 (CPIA) are met. (But I'm wandering off-topic here.)

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In some places, health care professionals are required to report certain types of violent injury to the police. Examples: Washington (gunshot wound, bullet wound, or stab wound), Florida (gunshot or life-threatening injury indicating an act of violence). In theory this is so that the police can track down whoever shot/stabbed the person, but in practice this can also be incriminating for the person who got shot/stabbed, for example if someone is shot while fleeing after committing a crime then the bullet along with records of that bullet having been removed from them could help identify them.

Most areas have requirements for health professionals and others such as teachers to report injuries suggesting child abuse (and sometimes also spousal abuse, elder abuse, etc.).

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