Court erred in ordering personal injury plaintiff to execute blanket release of all her medical records

Law Reporter, Feb 2002

Pina v. Espinoza, 29 P.3d 1062 (N.M. Ct. App. 2001).

The New Mexico Court of Appeals held that a trial court erred in ordering a plaintiff to execute a blanket release of her medical records in a personal injury case.

Here, Pina sued Espinoza for injuries she allegedly suffered after defendant's vehicle rear-ended her vehicle. Defendant served plaintiff with a request for production of her medical records, including a request that plaintiff execute a general medical release. Plaintiff moved for a protective order, claiming she had an expectation of privacy in her medical records and that defendant's right of access is no greater than that which is relevant to the lawsuit. Defendant responded that the physician-patient privilege asserted by plaintiff was waived once she placed her physical, mental or emotional condition at issue. The trial court denied plaintiff's motion and ordered her to execute a blanket release of her medical records. Plaintiff failed to comply, and the trial court dismissed the case.

Reversing, the appellate court noted that, under state law, a patient has a privilege to refuse to disclose confidential communications made for the purposes of a medical diagnosis. This general rule of privilege is qualified by another rule providing that a privilege does not exist as to communications relevant to an issue of the physical, mental, or emotional condition of a patient in any proceeding in which the patient relies on the condition as an element of a claim, the court explained.

Applying these rules here, the court found that a blanket release does not adequately protect the privileged portions of plaintiffs records because (1) it does not address the fact that waiver of the privilege must be applied on a communication-by-communication basis and not to types of documents, and (2) it erroneously treats plaintiffs entire medical condition as the unit of analysis. Rather, state law requires a court to determine relevance in terms of an issue of the physical, mental or emotional condition of a patient. Plaintiff, in filing her suit, did not put her entire medical history at issue, the court said.

The court also found that federal courts have established a procedure that is workable and fair to both the party claiming the privilege and the party seeking discovery of documents. Federal courts usually resolve the issue by requiring the party asserting the privilege to provide the other party with a list that describes each document without disclosing the allegedly privileged communication they may contain. Thus, a plaintiffs privilege list must identify each withheld communication and demonstrate an objectively reasonable basis for each assertion of the privilege, the court said.

Accordingly, the court remanded with directions to plaintiff to provide defendant with a privilege log.

Plaintiff's Counsel

*Kyle W. Gesswein, Las Cruces, N.M.

Amicus Curiae Counsel

*William H. Carpenter, Albuquerque, N.M.

Michael B. Browde, Albuquerque, N.M.