Protecting Privilege & Precluding Bad Doctors From The Bad Genes Defense The Non Discoverable

Unfortunately for our clients, sometimes the medical errors committed by negligent doctors are so egregious that they are non-defensible. Meanwhile, the so-called “medical malpractice crisis” has caused insurance companies to refuse settlement in such cases and to present a new defense based on the “bad genes” or hereditary history of the plaintiff, which purportedly negates any liability under their policies for their bad doctor’s conduct. Defendants traditionally raise this defense through interrogatories and depositions by improperly inquiring into the medical history of the plaintiff’s family members or by inappropriately asking for authorizations to release the medical records of those family members who are not even parties to the medical malpractice case.

There are three basic premises that make this “bad genes” defense both counter-intuitive and repugnant to legal and medical ethics. First, non-party medical records should never be discoverable.1 Second, a patient’s unfortunate genetic history should not allow a doctor to escape liability. Third, by allowing discovery of related non-parties’ medical records, the purpose and utility of the physician-patient privilege is destroyed.2 Despite these three basic premises, the law on this issue has never been decided in New Hampshire and is uncertain in many other jurisdictions.
We recently encountered and defeated this defense in a medical malpractice case under unusual procedural facts and want to take this opportunity to explain why, if this issue is addressed by the New Hampshire Supreme Court in the future, the Court should rule that the medical records of non-parties to medical malpractice cases are never discoverable. Such a rule is the only way to preserve the sanctity of the physician patient privilege and to prevent negligent doctors from escaping liability for their actions with a “bad genes” defense.
I. The Law Governing Discovery of Medical Records in New Hampshire
The discovery of medical records is governed by New Hampshire Superior Court Rules 35 and 63, as well as the Superior Court’s broad discretion over the admissibility and discoverability of evidence. Superior Court Rule 35(b)(1) provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”3 Medical records are privileged, however, and are only discoverable when that privilege is waived or there are “sufficiently compelling, countervailing considerations.”4 Because medical negligence cases necessarily involve a plaintiff’s medical conditions, however, a plaintiff is considered to have waived its statutory privilege “to the extent necessary to provide the opposing party [with] information essential to defending the action.”5 This is why the standing pretrial orders contained in Superior Court Rule 63 require that plaintiffs provide defendants with copies of all medical reports in their possession that relate to the litigation.6 Likewise, upon a defendant’s request, plaintiffs must sign medical authorizations for the release of hospital and x-ray records involved in the litigation.7
Notably, none of these Superior Court Rules, cases or statutes address when the medical records of a non-party may be discovered during a medical negligence case. We know that the physician-patient privilege is held by the patient alone, and only the patient can authorize the disclosure of his or her confidential medical records and communications.8 While there are certain exceptions to this rule, such as when the patient is a minor, incompetent or deceased and the patient has an alternate legal representative, these exceptions are few and the privilege is sacrosanct, therefore, if a non-party objects to the discovery of their medical records during a relative’s medical malpractice case, that objection should be honored and the invocation of privilege should be upheld.
Many other jurisdictions have ruled that the physician-patient privilege is not waived when a relative files a medical malpractice case.9 The same conclusion has been reached in other jurisdictions when medical records of family members are requested in cases involving lead paint, chemical and environmental exposure.10 Indeed, it appears that the only courts allowing discovery of non-party medical records have done so in birth injury cases when the mother’s obstetrical and gynecological records relating to the pregnancy and delivery of the minor plaintiff are requested.11 When abrogating the privilege for these mothers, each of the Courts in these birth injury cases apply a similar test to that used by our own Supreme Court in Petition of Haines, 148 N.H. 380 (2002), addressing whether the records are both relevant and essential to the defense of the case. Those limited courts found the records relevant and essential because the mother’s medical records during pregnancy and delivery are shared by the child bringing suit in the case.
In a traditional medical malpractice case, only the records of the plaintiff bringing suit are relevant and essential to resolving his or her claim. Indeed, our Supreme Court has ruled that “the patient partially waives her right to confidentiality by putting her medical condition at issue in a suit for medical negligence.”12 The Court made clear that even in medical negligence cases such a “waiver is only partial. It extends not to all information given in the course of treatment, but only to what is relevant to the plaintiff’s claim.”13 The Court held that, “absent a voluntary waiver, the patient waives the privilege only to the extent necessary to provide essential information.”14 From this limiting language and because the privilege is personal to the patient, it follows that a patient cannot authorize disclosure of a family member’s medical records. Likewise, it follows that the medical records of a non-party relative are not essential to a plaintiff’s medical negligence claim and, therefore, are not discoverable.
II. The Bad Genes Defense and the Medical Records of Related Non-Parties
Despite the well-settled New Hampshire law surrounding the physician patient privilege, when defendant doctors and insurers raise the “bad genes” defense in a medical malpractice case, they argue that the plaintiff may have been pre-disposed to injury due to a hereditary history of medical problems or, in other words, due to the plaintiff’s own “bad genes.” Therefore, these defendants argue that the medical records of the plaintiff’s immediate family members are relevant to showing this genetic propensity, which is essential to their defense to negate causation and limit damages in the case. In short, these defendants are arguing that, even if their bad doctor committed medical negligence, the outcome would have happened anyhow and the plaintiff is not entitled to damages for the doctor’s conduct.
We hope that such an argument is never given merit in any New Hampshire court during a medical negligence case when a defendant requests the medical records of a non-party relative. Relevance alone can never waive a statutorily granted privilege.15 This is because the very purpose of evidentiary privileges is to limit the disclosure of certain information in order to foster the societal relationships which public policies necessitating the privilege seek to protect.16 Should the New Hampshire Supreme Court ignore its longstanding jurisprudence regarding the sanctity of the physician-patient privilege, however, and entertain this argument when that non-party objects to the discovery of its medical records, the Court should apply its “essential need” test laid out in Petition of Haines and find that the medical records of a non-party are never discoverable because the information is neither relevant nor essential to defending a medical malpractice case.17
In the Haines case, the petitioner was a psychiatrist who had been sued for negligent supervision of a patient involuntarily committed to the New Hampshire Hospital after the patient jumped off of the top level of a parking garage.18 The underlying suit alleged that Dr. Haines suffered from a similar mental condition as his patient and was unable to properly care for or supervise his patient.19 Thus, the plaintiffs in the underlying suit sought discovery of Dr. Haines’s medical and psychiatric records regarding his mental disorder.20 The trial court granted this request finding they were essential to the plaintiffs pursuit of their negligent supervision claim.21 The Supreme Court disagreed though, ruling that the records were neither essential nor relevant to the plaintiffs pursuit of their claim because there were numerous non-privileged sources of information documenting the doctor’s precise condition, dates of treatment and treating physicians.22 Furthermore, the Court found that the plaintiffs seeking the records had not shown that the individual records of treatment sessions would provide them with any further information regarding whether the doctor complied with the applicable standard of care or that the records would be likely to lead to the discovery of evidence showing same.23
In short, the “essential need test” applied in the Haines case required that the medical records requested be relevant to proving an issue in the case and the information contained in the records must be unavailable from any other source.24 As in the Haines case, in any medical negligence case where the defendant seeks information about the medical history of a non-party, there are numerous non-privileged sources to get the same information. Specifically, the defendant can depose the family members of the plaintiff and ask specific questions. Likewise, the defendant can propound interrogatories or requests for admission from the plaintiff about whether or not family members suffer from the same or similar injury or medical condition. Due to the availability of these discovery methods, there is no legal basis for abrogating the physician patient privilege and allowing discovery into the medical records of related third-parties.
More importantly, however, allowing discovery of the medical records of related third-parties would destroy the purpose for the physician-patient privilege because every New Hampshire citizen would have to worry that their medical records would be subject to inspection if a relative files a lawsuit in the future. This may prevent people from providing their physicians with all of the information necessary for treatment because they do not want the information to be discovered at a later date.25
III. The Bad Genes Defense in Action – A Case Study
We recently encountered all of these issues in a medical malpractice case where we represented the Estate of a 29-year old man who suffered a cardiac arrest during a routine tympanoplasty due to errors committed by anesthesia personnel. During discovery, the defendants learned that our client’s father had died from a cardiac arrest at 55 years of age. The defendants deposed our client’s mother and brother about the father’s medical condition, learning the precise cardiac condition the father suffered from, the medications he took for that condition, the time frame that the father was treated for that condition and the identity of the doctor who treated the condition.
Despite learning all of this information during discovery, the defendants moved the Court to compel our client’s estate to sign medical authorizations to release the medical records of our client’s father for the ten years prior to his death. We objected for many of the reasons stated above, but also because there was no party authorized to sign the authorizations because the father was deceased and his probate estate had long been closed. Amazingly, the defendant argued to the Court that the patient had no interest in his privilege because he was dead, ignoring the fact that the physician-patient privilege survives the patient’s death.26 Unswayed by this erroneous argument, the defendant alternatively argued that the Court should order the mother, the former administrator of the father’s estate and the administrator of our client’s estate, to reopen the probate estate for the sole purpose of signing authorizations to allow the defense to obtain her deceased husband’s medical records.
The Superior Court declined to address the merits of our legal arguments, ruling that the records sought could only be available through a third-party equitable bill of discovery and such an action could not be filed until a third-party existed by reopening the estate in the probate court. The defendants accordingly filed a petition to reopen the probate estate and a bill of discovery, both which we moved to dismiss. The Superior Court dismissed the bill of discovery pending the reopening of the probate estate and the Probate Court dismissed the petition to reopen, finding that it could not appoint an unwilling person to administer an estate and that the discovery of medical records was an improper reason to reopen an estate when it was brought by a party with no legitimate interest in the estate assets such as a creditor or person with a valid beneficiary interest in the estate. Thus, the bill of discovery could not be re-filed in Superior Court because there was no third-party to file it against, and the merits of this legal issue will not be decided in this case because there will never be a party authorized to waive the decedent father’s statutory privilege.
IV. Conclusion
While the merits of this legal issue were not addressed in our case, it surely will arise again with the prevalence of this “bad genes” defense being asserted in malpractice cases. If courts begin granting access to related third-party medical records in malpractice cases, the floodgates will open and this defense will be raised in all medical negligence claims. Furthermore, the purpose of the physician-patient privilege will be destroyed because peoples’ medical records may be subject to discovery if their relatives fall victim to medical malpractice and file a medical negligence claim. The physician-patient privilege was created to ensure that patients disclose all details of their medical conditions to their doctors so that they can receive complete and appropriate treatment. Even our Supreme Court has recognized that much of what a physician learns from his patient can be embarrassing and of little consequence to society.27 Thus, the privilege was created to “insure that the patient may reveal facts that could be necessary to successful treatment without fear of humiliation.”28 Patients will no longer reveal embarrassing facts to their physicians if those facts may be discovered in a relative’s civil suit unrelated to their own treatment. We, as the lawyers for patients, need to ensure that the abrogation of this privilege does not occur. Especially, when it is at risk due to insurers refusal to settle cases involving the most egregious medical errors at all, those that are non-defensible without a “bad genes” defense.
White, Scott R., Discovery of Non-Parties’ Medical Records in the Face of the Physician Patient Privilege, 36 Cal. W. L. Rev. 523, 540 (Spring 2000).
See, e.g., Van Epps v. County of Albany, 706 N.Y.S.2d 855, 861 (2000).
Emphasis added.
In re Kathleen M., 126 N.H. 379, 382 (1985); RSA 329:26.
Nelson v. Lewis, 130 N.H. 106, 112 (1987) (emphasis added); see also Petition of Haines, 148 N.H. at 381.
N.H. Super. Ct. R. 63(e).
N.H. Super. Ct. R. 63(f).
Nelson v. Lewis, 130 N.H. 106, 109 (1987).
See, e.g., Kunz v. South Suburban Hospital, 761 N.E.2d 1243, 1247-48 (Ill.App. 2001) (holding that in birth injury case “filing a medical malpractice lawsuit on behalf of a child, even when a genetic cause independent of medical malpractice may become an issue, does not thereby waive the physician-patient privilege in favor of the child’s siblings.”); Dierickx v. Cottage Hospital Corporation, 393 N.W.2d 564, 566 (Mich.App. 1986) (minor’s plaintiff’s siblings did not place their health in issue so they did not waive the physician-patient privilege); Murphy v. LoPresti, 648 N.Y.S.2d 169, 169-70 (N.Y.App. 1996) (mother who brought birth injury case on behalf of child did not waive her own physician-patient privilege with respect to records outside of this pregnancy).
See, e.g., Pierce v. Whitney Street Associates, 2000 WL 839980 (Conn. Super. 2000) (holding that mother who filed lead paint case on behalf of her children did not waive her own physician-patient privilege even though she was a named plaintiff); Monica W. v. Milevoi, 685 N.Y.S.2d 231, 233 (N.Y.App. 1999) (ruling that lead paint case brought on behalf of child did not constitute waiver of parents’ and siblings’ physician-patient privilege); Van Epps v. County of Albany, 706 N.Y.S.2d 855, 861 (N.Y.Sup. 2000) (finding that lead paint case brought on behalf of child did not constitute waiver of parents’ and siblings’ physician-patient privilege).
See, e.g., Vincent v. Connaught Labs., 131 F.R.D. 156, 159 (E.D. MO 1990); Palay v. Superior Court, 22 Cal.Rptr.2d 839, 846 (Cal.Ct.App. 1993); El-Amin v. Dempsey, 768 N.E.2d 344, 351-52 (Ill.App.Ct. 2002); Amand v. Merrell Dow Pharmaceuticals, 530 N.Y.S.2d 428, 429 (NY Sup. 1988).
Nelson, 130 N.H. at 109.
Id. at 110.
See Johnson v. Trujillo, 977 P.2d 152, 157 (Colo. 1999).
See id. (citing Charles T. McCormick, McCormick on Evidence §72, at 269 (John W. Strong et al., eds., 4th ed. 1992)).
Haines, 148 N.H. at 382-82.
Id. at 380.
Id. at 380-81.
Id. at 381.
Id. at 382.
Id. at 381.
Nelson, 130 N.H. at 109.
See Sun Health Corporation v. Myers, 70 P.3d 444, 448 (Ariz.App. 2003) (“Although the physician-patient privilege belongs to the patient, the privilege continues after death.”); see also RSA 329:26 and N.H. R. Evid. 503 (stating that the physician-patient privilege has the same scope as the attorney-client privilege). Our Supreme Court has held that the attorney-client privilege survives the client’s death and may be asserted by the decedent’s representatives. See Stevens v. Thurston, 112 N.H. 118, 119 (1972); Scott v. Grinnell, 102 N.H. 490 (1960). Thus, it follows that the physician-patient privilege survives death as well.
Nelson, 130 N.H. at 109.