In many cases, the issue of pre-existing injuries becomes an issue that affects both liability and damages. Often, Plaintiffs allege extensive injuries from an accident, including claims for injuries unrelated to the accident. Defendants have often uncovered the existence of pre-existing injuries by combing through prior medical records. On February 5, 2009, the Eighth District Court of Appeals for Cuyahoga County issued an opinion in Wooten v. Westfield Insurance Company, 2009-Ohio-494 that effectively limits the availability of medical records to those that are related solely to the injuries claimed at the time of filing the Complaint.
In Wooten, Plaintiff was involved in a motor vehicle accident with an insured of Westfield Insurance. Westfield requested Plaintiff to execute four releases for medical information. Two of the releases requested all protected health insurance for a ten year period of time.
Plaintiff objected by way of correspondence to Westfield’s attorney, indicating she had waived her physician/patient privilege only to those conditions and treatments that were related causally or historically to the physical injuries that were relevant to the personal injury claim. Plaintiff further described her injuries as orthopaedic injuries mainly to her neck and shoulder.
Plaintiff s counsel then suggested a modified in-camera procedure whereby Plaintiff would sign the authorizations, the records would be released to a vendor selected by Westfield, and Plaintiff's counsel would then examine each and every record. Plaintiff's counsel would then consent in writing to the release of all records he felt were relevant. Any privileged documents would be sent to the Court for a formal in-camera inspection.
Westfield rejected the proposal, and Plaintiff filed a Motion for Protective Order. The Trial Court denied the protective order, and Plaintiff appealed. The Eighth District Court of Appeals reversed the Trial Court’s decision.
Initially, the Court of Appeals determined that the standard of review, while generally an abuse of discretion concerning discovery issues, was de novo as a result of the appeal requiring the interpretation and application of R.C. 2307.02(B), the statute governing the physician/patient privilege. The Court then addressed the issues raised by the Plaintiff.
In three assignments of error, Plaintiff essentially argued that Westfield would not be entitled to all of her medical records without regard to whether they were causally or historically related to the injuries at issue. The Court agreed with Plaintiff’s position. R.C. 2317.02(B)(3)(a) addresses the physician/patient privilege and states “a physician or dentist may be compelled to testify or to submit to discovery under the Rules of Civil Procedure only as to a communication made to the physician or dentist by the patient in question in that relation, or the physician’s or dentist’s advice to the patient in question, that related causally or historically to physical or mental injuries that are relevant to issues in the medical claim, dental claim, chiropractic claim, or optometric claim, action for wrongful death, other civil action, or claim under Chapter 4123 of the Revised Code.” (Emphasis added) Finding that Westfield’s request was a blanket request that sought all medical records with only a time limitation, the Court of Appeals found Plaintiff s Motion for Protective Order to be well taken.
The Court of Appeals also addressed the issue of the in-camera inspection. The Court noted that the Trial Court has the authority to order an in-camera inspection of medical records without a request from either party and, upon remand, directed the Trial Court to conduct an in-camera inspection of all records to determine which records are discoverable.
As a result of this decision, it will be more difficult to learn of pre-existing injuries or prior claims made by Plaintiffs that may have a mitigating effect upon the case. Frequently, Plaintiffs deny any previous injuries, and without the ability to obtain prior medical records, a premium is placed upon the Defendants to conduct additional investigation and independent research into prior claims of a Plaintiff. Thorough background checks should now become a standard part of any initial investigation, particularly where there is any sign of a pre-existing injury.
Should you desire a full text of the decision and opinion or have any other questions in general, or specific to these issues, please contact one of our General Casualty Practice Group Members.