What limitations exist, if any, on a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident?

Under New Jersey law, there is no statute or case law that limits a defendant’s ability to obtain a plaintiff’s complete medical history, both pre and post incident. The critical question is whether a plaintiff’s medical history is relevant to the plaintiff’s claim. Similarly, under Federal Rule of Civil Procedure 26, a defendant can obtain a plaintiff’s complete medical history if relevant to a plaintiff’s claim.

New Jersey

The ability to obtain a plaintiff’s complete medical history, both pre and post incident, is governed by the New Jersey Court Rules. Pursuant to Rule 4:17-4(f), a plaintiff or a counterclaimant seeking damages for personal injuries must serve, “contemporaneous with his or her answers to interrogatories, an executed form authorizing disclosure to the opposing party or parties, for purposes of litigation,” pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), “as to each health care provider named in his or her answers to interrogatories including non-treating expert witnesses.” Additionally, to obtain a plaintiff’s complete medical record, both pre incident and post incident, Rule 4:10-2 states: “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” New Jersey’s discovery rules are liberal. In theory, a defendant may obtain pre incident and post incident medical records if such records are relevant to the issue of causation and damages.

District of New Jersey

Like New Jersey, the District Court of the of New Jersey has no limitations; instead, the threshold question for a defendant to obtain a plaintiff’s complete medical record is whether such records are relevant to the plaintiff’s claim or counterclaim pursuant to Federal Rule of Civil Procedure 26. The rule states: “[u]nless otherwise limited by court order . . . [p]arties may obtain discovery regarding nonprivileged matter that is relevant to any party’s claim or defense and proportional considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

In theory, so long as a party can show that certain pre incident medical records and post medical records are relevant to the case, the seeking party may obtain such medical records. Furthermore, a plaintiff has a duty, pursuant to Rule 26(e), to produce updated medical records where medical treatment for his or her alleged injuries is ongoing and affects the claim for damages. Faiella v. Sunbelt Rentals, Inc., No. 18-11383, 2022 U.S. Dist. LEXIS 11383, n. 4 (D.N.J. Aug. 5, 2022) (citing Arthur v. Atkinson Freight Lines Corp., 164 F.R.D. 19 (S.D.N.Y. 1995)).

In practice, plaintiffs often object to unfettered discovery of pre and post incident medical records, and the parties negotiate limits. Depending on the nature of the case, the limits can range from 5-12 years pre-incident.