Obtaining Mental Health Records for Litigation

In any litigation, the parties are almost certain to engage in the process of “discovery.” Discovery is the stage of a lawsuit-after all parties’ claims have been filed against the other parties, and all parties have answered-in which the parties engage in the exchange of information to develop their respective cases for trial (or settlement prior to trial). There are many forms of discovery, but the most common are: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. The topics covered by discovery must be relevant to the pending litigation. (Note that “relevance” is defined broadly-that is, the information sought does not have to be admissible in evidence; it only must be deemed “reasonably calculated to lead to the discovery of admissible evidence”).

Interrogatories are written questions that must be answered in writing, fully and completely, by the responding party, under oath. Requests for production are individual requests that certain documents or other items of evidence be made available for inspection. Such requests are usually for documents, but they may also include the right to inspect a premises (perhaps in a slip and fall case) or an automobile (in a car crash case). Depositions are in-person sessions in which a witness must appear and answer verbally to direct questions from other parties’ lawyers, all under oath and recorded by a court reporter.

Requests for Production can be served either on a party to the litigation, or on a “non-party.” (A non-party, for discovery purposes, is any party that is not a plaintiff or a defendant in the pending lawsuit). In personal injury cases, for instance, the defendant’s insurance company (through the defense attorney) will almost always want to obtain the injured plaintiff’s medical records and medical bills from the injured plaintiff’s doctors and other medical care providers. The reason is obvious and legitimate: to properly evaluate an injury, the insurance company must have all of the relevant information regarding the diagnosis and treatment of that injury. Where those records are sought directly from the doctor (as opposed to getting them directly from the injured plaintiff’s attorney), there is a set of rules that must be followed. That process includes the giving of prior notice of the intent to serve the non-party discovery-along with a copy of the specific discovery requests-at least 15 days prior to the date they are actually sent to the third-party. This 15-day window gives the injured plaintiffs and their attorney a chance to evaluate the scope of the request and whether any objection is necessary (medical records outside the scope of the claimed injuries are still protected by privacy laws, although any privacy protections for injuries relating to the injuries being claimed are waived).

Litigants (and sometimes their attorneys) might not realize that some records may have extra layers of protection that must be navigated before they can be obtained. Where the records sought are mental health records, as opposed to just run-of-the-mill medical records, there are additional, special protections. Ind. Code §16-39-3-3 provides particular requirements that a requesting party must follow before a court can release such records. Specifically, a requesting party must file a petition for the release of the records (I.C. §16-39-3-3(2)) and provide notice to:

(a) the other party whose records are being sought; and

(b) the mental health provider

that the records are being sought and advising of the date of a hearing on the matter. (I.C. §16-39-3-4). Then, the court is required to hold a confidential hearing (I.C. §16-39-3-6) and make findings that:

(a) other reasonable methods of obtaining the information are not available or would not be effective; and

(b) the need for disclosure outweighs the potential for harm to the patient

(See I.C. 16-39-3-7). If a party does not follow these procedures to obtain mental health records, it most likely will be deemed reversible error by the court of appeals.

The added protection for mental health records ensures that courts provide an individualized and confidential assessment regarding the need for these very sensitive records in any particular case. If it is a personal injury case, such records should not be relevant-unless the injury victim is claiming closed head trauma with damages to mental functioning. In a divorce or custody case, the mental health of a parent is always relevant and discoverable, subject to the protections of the statute for the proper protection of this delicate information. (See I.C. §31-17-2-8(6), which provides that the trial court must consider the mental health of all individuals involved when determining the child’s best interest in a custody dispute).

In any litigation, the parties are almost certain to engage in the process of “discovery.” Discovery is the stage of a lawsuit-after all parties’ claims have been filed against the other parties, and all parties have answered-in which the parties engage in the exchange of information to develop their respective cases for trial (or settlement prior to trial). There are many forms of discovery, but the most common are: (1) Interrogatories; (2) Requests for Production; and (3) Depositions. The topics covered by discovery must be relevant to the pending litigation. (Note that “relevance” is defined broadly-that is, the information sought does not have to be admissible in evidence; it only must be deemed “reasonably calculated to lead to the discovery of admissible evidence”).

Interrogatories are written questions that must be answered in writing, fully and completely, by the responding party, under oath. Requests for production are individual requests that certain documents or other items of evidence be made available for inspection. Such requests are usually for documents, but they may also include the right to inspect a premises (perhaps in a slip and fall case) or an automobile (in a car crash case). Depositions are in-person sessions in which a witness must appear and answer verbally to direct questions from other parties’ lawyers, all under oath and recorded by a court reporter.

Requests for Production can be served either on a party to the litigation, or on a “non-party.” (A non-party, for discovery purposes, is any party that is not a plaintiff or a defendant in the pending lawsuit). In personal injury cases, for instance, the defendant’s insurance company (through the defense attorney) will almost always want to obtain the injured plaintiff’s medical records and medical bills from the injured plaintiff’s doctors and other medical care providers. The reason is obvious and legitimate: to properly evaluate an injury, the insurance company must have all of the relevant information regarding the diagnosis and treatment of that injury. Where those records are sought directly from the doctor (as opposed to getting them directly from the injured plaintiff’s attorney), there is a set of rules that must be followed. That process includes the giving of prior notice of the intent to serve the non-party discovery-along with a copy of the specific discovery requests-at least 15 days prior to the date they are actually sent to the third-party. This 15-day window gives the injured plaintiffs and their attorney a chance to evaluate the scope of the request and whether any objection is necessary (medical records outside the scope of the claimed injuries are still protected by privacy laws, although any privacy protections for injuries relating to the injuries being claimed are waived).

Litigants (and sometimes their attorneys) might not realize that some records may have extra layers of protection that must be navigated before they can be obtained. Where the records sought are mental health records, as opposed to just run-of-the-mill medical records, there are additional, special protections. Ind. Code §16-39-3-3 provides particular requirements that a requesting party must follow before a court can release such records. Specifically, a requesting party must file a petition for the release of the records (I.C. §16-39-3-3(2)) and provide notice to:

(a) the other party whose records are being sought; and

(b) the mental health provider

that the records are being sought and advising of the date of a hearing on the matter. (I.C. §16-39-3-4). Then, the court is required to hold a confidential hearing (I.C. §16-39-3-6) and make findings that:

(a) other reasonable methods of obtaining the information are not available or would not be effective; and

(b) the need for disclosure outweighs the potential for harm to the patient

(See I.C. 16-39-3-7). If a party does not follow these procedures to obtain mental health records, it most likely will be deemed reversible error by the court of appeals.

The added protection for mental health records ensures that courts provide an individualized and confidential assessment regarding the need for these very sensitive records in any particular case. If it is a personal injury case, such records should not be relevant-unless the injury victim is claiming closed head trauma with damages to mental functioning. In a divorce or custody case, the mental health of a parent is always relevant and discoverable, subject to the protections of the statute for the proper protection of this delicate information. (See I.C. §31-17-2-8(6), which provides that the trial court must consider the mental health of all individuals involved when determining the child’s best interest in a custody dispute).