As a Certified Family Law Specialist in Santa Barbara, I often advise clients on the sensitive issue of medical records in divorce cases. It's crucial to understand that your medical information is generally privileged and not automatically subject to disclosure. However, there are specific circumstances and strategic approaches that can alter this.
The Confidentiality of Medical Records
In California, communications with medical professionals, including doctors, therapists, and mental health professionals, are protected by doctor-patient confidentiality and psycho-therapy privilege. This means that conversations and records from your medical providers cannot be used as evidence against you in court. Your lawyer is also prohibited from disclosing this information.
The critical point to remember is that this privilege can be waived. If you discuss what you've shared with your medical professional with other people, either in writing or verbally (other than your lawyer), you may lose this protection. Therefore, it is imperative not to discuss any medical discussions with anyone else at any time.
When Medical Records Become an Issue
Medical records typically become discoverable when a party "puts their medical condition in issue." This often happens in cases involving:
- Custody Disputes: If one parent's mental or physical health is alleged to impact their ability to care for the child, their medical records may become relevant. For example, if a party is seeking emergency custody orders and their mental health is at issue, the court may authorize a review of relevant medical records.
- Spousal Support: A party seeking or opposing spousal support based on their health condition may find their medical records scrutinized.
- Capacity or Undue Influence: In cases where the validity of an agreement or transaction is challenged due to a party's mental capacity, medical records can be highly relevant.
Strategies for Obtaining Medical Records
If you believe your spouse's medical records are relevant to your divorce case because they have put their medical condition at issue, there are specific legal avenues to pursue their production:
- Formal Discovery Requests: You can issue requests for production of documents, specifically tailored to the relevant medical records. However, such requests must comply with the Code of Civil Procedure and California Family Code. For instance, discovery generally isn't permitted in Domestic Violence Restraining Order (DVRO) cases without a prior court order.
- Court Order: If your spouse resists discovery, you may need to file a motion with the court to compel the production of records. You'll need to demonstrate to the court that the records are relevant and that the medical privilege has been waived or does not apply in your specific circumstances. This might involve arguing that denying access to the report would violate due process rights, especially if an expert needs to review the report to provide testimony. For example, in the Sperling case, the argument was made that denying an expert access to a custody evaluation report would prevent marshalling evidence and deny the right to obtain an expert.
- Stipulation and Confidentiality Agreements: Sometimes, parties can agree to the production of certain medical records under a strict confidentiality order. This can allow for limited review by a retained expert, such as a forensic psychologist, while ensuring the information remains protected from wider dissemination.
Strategies for Keeping Medical Records Confidential
If you want to protect your medical records from disclosure, you need to be proactive and careful:
- Do Not Put Your Medical Condition in Issue: Avoid making your physical or mental health a central theme of your case, unless absolutely necessary. For example, if you are not claiming inability to work due to a medical condition, do not present evidence or testimony that might open the door to your medical history.
- Strict Adherence to Privilege: Do not discuss the details of your medical treatment or conversations with medical professionals with anyone other than your attorney. This includes friends, family, or even other professionals who are not part of your legal team and covered by privilege.
- Object to Discovery Requests: If you receive a discovery request for your medical records, your attorney can object based on privilege.
- Seek a Protective Order: If there's a concern that your medical records might be improperly sought, your attorney can request a protective order from the court to prevent their disclosure. Even if a professional is granted access to review reports, they can be required to sign a confidentiality agreement to ensure private information is not released.
Navigating the complexities of medical record disclosure in a divorce case requires careful legal guidance. If you have concerns about your medical records or need to access those of another party, it is essential to consult with an experienced Certified Family Law Specialist.