Physician-Patient Privilege, Discovery

During the discovery process, one or more parties often seek to obtain another party’s medical records on the basis that they’re relevant to prosecuting/defending the case. Both federal law (via HIPAA) and Missouri law impose several procedural and evidentiary obstacles before medical records may be released and admitted into evidence.
In Missouri, Rule 56.01(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action[.]”  Medical records are subject to the physician-patient privilege, as codified under Section 491.060(5), RSMo. Brandt v. Pelican, 856 S.W.2d 658, 661 (Mo. 1993). Any information a physician acquires from a patient while attending the patient and which is necessary to enable the physician to provide treatment is privileged. State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. 1995).
In light of these broad protections, how is it ever possible to obtain healthcare records? There are two simple ways and a more difficult way. First, the patient can voluntarily and expressly waive the privilege by signing a release of medical records form. Second, the privilege may be waived if the litigant puts his/her physical condition at issue in the lawsuit. State ex rel. McNutt v. Keet, 432 S.W.2d 597, 601 (Mo. 1968). The reasoning is that if a litigant is using his/her physical condition as a claim or defense in the lawsuit, the other party should be able to obtain that information to evaluate the contention. This often happens in personal injury lawsuits when a defendant is trying to determine the nature and extent of the physical harm suffered.
The difficult way is via a subpoena directly to the healthcare provider. Under C.F.R. § 164.512(e), a healthcare provider may sometimes turn over healthcare information if it is accompanied by a “qualified protective order,” which, among other things, makes the information confidential and for use only in the litigation. Be aware that this is a much more complex process than it seems and is decidedly disfavored. 
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