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CO High Court Rulings Limits Defendants' Access to Medical Records

August 19, 2005

A series of recent Colorado Supreme Court rulings may have the effect of defendants' access to the medical records of those suing them.

In the most recent case, Gloria Gina Alcon complained of "lower back pain, neck and shoulder pain, chipped tooth, (and) depression" in her lawsuit, and a Pueblo district judge ordered the release of her medical and pharmaceutical records for the past 10 years in accordance with the defendant's wish.

The high court said the judge had gone too far and that plaintiffs don't waive the doctor-patient privilege for all of their records, even if they might provide information relevant to the case. Indeed, the court specifically said that "relevance alone cannot be the test" for waiving the physician-patient privilege. Instead, the court said, "the waiver is limited to those records relating to the cause and extent of the injuries and damages allegedly sustained as a result of the defendant's claimed negligence." In previous decisions, the court made a similar point about the psychotherapist-patient privilege.

While critics say a patient's privacy is extremely important and that is the reason why medical records are usually protected, these records also may shed light on a plaintiff's claim that shouldn't be hidden from view. They say that the court's insistence that medical records aren't necessarily open to inspection by the defense even if they provide "possible alternate causes of (the plaintiff's) mental distress" should be downright alarming to motorists, property owners and business persons - the likely targets of emotionally unstable litigants.