Often in transportation related claims and lawsuits, when a claim is being adjusted, or once litigation commences, opposing counsel attempts to seek medical information from the insured driver to bolster their case. In addition, in medical malpractice claims the plaintiff may seek medical records of defendant surgeons to see if any medical condition of the doctor may have contributed to the alleged malpractice. Most often, if the insured is injured, opposing counsel seek discovery of the ER records to determine if alcohol or other drugs may have played a part in the accident, or to discover incriminating statements the insured may have made to heath care providers.
This case arose out of a bad result from orthopedic surgery, and a resulting action against the surgeon. The Plaintiff claimed the surgeon had carpal tunnel syndrome that contributed to the surgeon’s inability to perform the surgery properly. In the lawsuit the Plaintiff put in issue the surgeon’s alleged physical limitations to safely perform the surgery. At the surgeon’s deposition, on cross examination she answered questions concerning the carpal tunnel diagnosis and her symptoms. Plaintiff’s counsel then sought discovery of the surgeon’s medical records concerning the carpal tunnel condition and the trial court held that those records needed to be produced.
The Western District Court of Appeals reversed and held that the medical records were protected from disclosure based on the Physician-Patient privilege set forth in RSMo. §491.060 (5). This statute protects statements between patients and physicians, including medical records, even if the information is material to the lawsuit. Although a Plaintiff waives this privilege if they put their medical condition in issue, if a defendant does not voluntarily put their health in issue, the privilege cannot be defeated. Further, answering questions in response to opposing counsel’s questions during a deposition, is not considered a voluntary waiver, so if opposing counsel asks the questions, they are stuck with the answers, with no recourse to rebuttal.
Keep in mind when evaluating claims that in most all instances your insured’s medical records cannot be discovered and used against the insured. This is important to be aware of, because as we see in this case, even a trial judge ordered disclosure, and appellate review was necessary to correct this error. Goldstein v. Crane, 688 S.W.3d 681, 684–89 (Mo. Ct. App. 2024),