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Posted in Law on November 8, 2016   |  by Gary Burger

Discoverability of Non-Party Medical Records in Illinois and Missouri

When you have a non-party whose medical records could reveal valuable information which is pertinent to your case, it is important to know whether you can discover this private information or not. Here is the law in Illinois and Missouri:

Illinois has defined the physician-patient relationship by statute: “[n]o physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient. . . .” 735 ILCS 5/8-802. Therefore, medical records of non-parties are generally protected by the physician-patient privilege. See In re D.H., v. Chicago Housing Auth., 319 Ill.App. 3d 771, 774 (1 st Dist. 2001), Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448, 452 (2005). The non-party privilege is not absolute, however, and discovery depends on whether the information which is sought is general information or treatment information that is necessary to enable a physician to serve a patient. See Tomczak, 359 Ill. App. 3d at 453. Consequently, despite the fact that a non-party might have contributed to your client’s accident or injury, his medical records are likely not discoverable unless he has been made a party to the action against the barge company.

In Missouri, the physician-patient privilege is also not absolute. State ex. Rel. Dean v. Cunningham, 182 S.W.3d 561, 567 (Mo. Banc 2006). “The circumstances, facts and interests of justice determine the applicability of the physician-patient privilege to a particular situation.” State ex rel. Lester E. Cox Med Ctr. V. Keet, 678 S.W.2d 813, 815 (Mo. Banc 1984). In State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407 (Mo. Banc 1996), the Missouri Supreme Court held that the compulsory production through discovery of a nonparty’s medical records is limited in two important respects. First, a judge can only order discovery of a nonparty’s medical records if they are relevant to the pending claim, and adequate safeguards are provided to protect the nonparty as much as possible. Id. at 410. Second, the only proper procedure to compel discovery of such records is by subpoena duces tecum. Id. at 408l see also State ex rel. Williams v. Lohmar, 162 S.W. 3d 131, 134 (Mo.App.2005); State ex rel. Dixon Oaks Health Cerner, Inc. v. Long, 929 S.W.2d 226, 228 (Mo.App.1996). The Missouri Supreme Court has also previously ruled that a trial judge should review nonparty records in camera to protect them from “humiliation, embarrassment or disgrace.” See State Ex Rel. Lester E. Cox Med. Ctr. v. Keet, 678 S.W.2d 813 (1984).