Will a Plaintiff's Attorney See Your Own Medical Records?

By Rice, Berkeley | Medical Economics, October 9, 1995 | Go to article overview

Will a Plaintiff's Attorney See Your Own Medical Records?


Rice, Berkeley, Medical Economics


When Maria Cadena became pregnant in the spring of 1984, she came to the Family Medical Center in McAllen, Texas, for prenatal care. Her primary doctor there during her pregnancy was a first-year family practice resident we'll call Harold Brown.

Court records early in the ensuing malpractice suit identified the physician by his real name. Subsequently, the plaintiffs demanded his medical records, claiming they were needed to prove the allegation that he was impaired. The doctor's fight to protect his privacy then became the major issue in the case. Reflecting his concern, decisions by higher courts omitted his name.

Brown and a senior resident performed a sonogram on Cadena in June, and Brown examined her several more times over the following months. When he saw her in October, near her anticipated delivery date, he noted that she was much larger than expected. So he did another ultrasound exam, with a supervisor present, from which he concluded that she was carrying only one child. He also diagnosed polyhydramnios and possible pre-eclampsia. Brown sent her home, ordering a follow-up evaluation for the next day.

But in the morning, Cadena went into labor and was admitted to McAllen Methodist Hospital. At about 10 a.m., Brown delivered a healthy baby boy. A few minutes later, a nurse discovered that Cadena was carrying a second baby. When that one emerged, he was suffering from asphyxia. Now 11 years old and afflicted with cerebral palsy and spastic quadriplegia, Daniel Cadena is severely retarded both physically and mentally.

In 1991, the Cadenas filed a malpractice claim against Brown, several supervising physicians, the clinic, and the hospital. The suit charged Brown and his colleagues with "failing to properly diagnose, monitor and/or treat" Cadena and alleged that their "negligence" had caused her son's injuries. The suit asked for damages of $30 million.

When the Cadenas' lawyer, Houston attorney Richard Frankel, learned that Brown had been admitted to a mental health facility two months after Daniel's birth, he demanded to see the records of that treatment. He argued that the information would reveal whether Brown had been "impaired" at the time he was treating Cadena, and whether he had a history of mental health problems. Brown moved to block the discovery on the grounds that the release of those records would violate his own patient-physician privilege, and that they were irrelevant to the plaintiff's claim.

The trial judge denied his motion and ordered the records released to the plaintiff. Brown petitioned the appellate court to block the release, and in May 1993 that court ruled in his favor, stating that the Cadenas hadn't specifically alleged that Brown's condition was relevant to their claim.

"A party who alleges that the imparied condition of a defendant caused harm has a right to discover information about that defendant's mental or physical condition," the court conceded. But the party making such an allegation must show that it is "at least partly predicated on the patient's physical, emotional, or mental condition." A mere "general allegation of negligence" isn't sufficient grounds to breach the privacy of such information.

What the legal wrangling yielded

Recognizing that the appellate ruling virtually invited the Cadenas to resubmit their complain with more-specific allegations, the doctor took the case to the Texas Supreme Court. San Antonio attorney Rosemary Hollan, who represented him, contended that the appellate judges had erroneously interpreted previous court decisions on physician-patient privilege.

The appellate court's interpretation, she argued, would "invite abusive discovery by a litigant of an adversary's medical records (however irrelevant, stigmatizing, or embarrassing) merely upon an unsworn allegation that the adversary's medical or mental condition is 'at issue.'"

In response, Frankel asserted that Brown's "condition, and the other defendants' knowledge of his condition, form the very essence of the plaintiff's case. …

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