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Be Careful What You Ask For

On November 21, 2017, in an en banc decision, the Missouri Supreme Court once again discussed the scope of permissible medical records requests in personal injury actions. The rule for the proper scope of medical authorizations is that "defendants are not entitled to any and all medical records, but only those records that relate to the physical conditions at issue under the pleadings." Unless special circumstances are shown, the language of defendant's requested authorization should track plaintiff's allegations of injury in the complaint.

In State ex rel. Fennewald v. Joyce, No. SC96219 (Mo. banc 2017), the Petitioner filed a wrongful death medical malpractice action against several Defendants arising out of an alleged undiagnosed colon cancer. In the course of discovery the Defendants sought an order from the circuit court authorizing release of the Decedent's medical records. After a hearing, the circuit court signed an "Order Authorizing the Release of Medical Records." The circuit court's Order broadly authorized release of Decedent's medical records beyond decedent's colon cancer to any and all medical records, radiology, laboratory, pathology, pharmacy and billing records that extended to Decedent's lymphoma, other cancers, co-morbidities and medical history for thirty years prior to the date of the Order. The Order also allowed for release of documents and information relating to substance abuse, mental health and HIV-related information.

The Missouri Supreme Court, in discussing the circuit court's Order cited to two prior en banc decisions, State ex rel. Stecher v. Dowd, 912 S.W.2d 462, 464 (Mo. banc 1995), and State ex re. Jones v. Syler, 936 S.W.2d 805, 807 (Mo. banc 1997) for the rule that "medical authorizations must be tailored to the pleadings, and this can only be achieved on a case-by-case basis." This was not done by the circuit court.

Medical records are generally subject to a physician-patient privilege. See Section 491.060(5), RSMo 2000. Once a plaintiff puts the matter of his/her condition at issue under the pleadings, the privilege is waived. But the waiver is not general as to all medical records; this waiver is only as to records that relate to the physical conditions at issue under the pleadings. Under the principles of Stecher, Syler and Fennwald, medical authorizations must be drafted with the proper scope and precision to be tailored to the condition at issue in the pleadings, and this can only be achieved on a case-by-case basis.

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