Disclosure of Personal Information (Medicolegal Issues) (Law Overview‪)‬

It is well known that personal information, such as health care records, is privileged. As discussed last issue, the federal government has recently taken additional steps to ensure that the privileged nature of this information is maintained. Financial information is also guarded and maintained as personal and private. It is also well known that in litigation, applicable privileges can be waived, and information that is otherwise protected and private must be disclosed to your opponent. In this issue, I examine circumstances in which a defendant health care provider is required to disclose otherwise personal and private health care and financial information to his or her opponent. Personal health care information is protected by state and federal statute. Personal medical information is protected from disclosure by the Texas Rules of Evidence and Texas statute (1). This information will also be protected by the newly publicized federal scheme that must be complied with by early 2003 (2). Mental health care information is protected by the Texas Rules of Evidence, Texas statute, and federal law (3). Information regarding substance abuse treatment is also protected by federal statute (4). These protections, however, can be waived when the information contained in these records is relevant to ongoing litigation. Disputes about the discoverability of this privileged information first arose when personal injury claimants sought recovery for emotional or physical injuries but invoked the applicable privileges to thwart efforts by defense counsel to obtain and review their medical or mental health care records. This "offensive" use of these privileges was held to be improper. If recovery is sought for a medical or psychological condition, relevant records that discuss the claimant's medical or psychological condition are discoverable. A party seeking redress before the court cannot withhold "evidence which would materially weaken or defeat" that party's claim. Any applicable privileges are waived (5).