Use of Plaintiff’s Medical Records in Defense of an Auto Claim in Texas

July 2016Article

Why do I need Plaintiff’s medical records?

Obtaining plaintiffs medical records in a personal injury lawsuit arising out of a motor vehicle collision is critical to the defense. Sixty to eighty percent of adults have had low back pain and it is the second most common reason people go to the doctor.1About half of Americans have experienced neck pain.2 At least half of those 50 and older have some evidence of rotator cuff damage.3 A British study recently found that nearly two thirds of women over 50 had experienced knee pain.4 More than 8 million Americans visit their doctors with complaints of headaches every year.5 Chances are the aftermath of the car wreck in question is not the first time Plaintiff has had treatment for the condition/body part alleged to be injured in that car wreck.

The car wreck defendant is forced by law- “The Eggshell Plaintiff Role,” to take Plaintiff as it finds them, and can be held responsible for the ensuing damages, even if one plaintiff may be more damaged than another in the same circumstances. However the car wreck defendant is only responsible for the damages it causes. “You take the Plaintiff as you find him” works both ways. If the Plaintiff’s medical history is known it can be used to prove that minimal or early treatment returned the Plaintiff to his pre-accident condition, or that Plaintiff was already so affected that the car wreck didn’t actually result in any damages.

How do I obtain Plaintiff’s medical records?

Medical providers should be disclosed in response to Tex. R. Civ. P. 194.2 (e) and (f). The records themselves can be obtained through Requests for Disclosures, Tex. R. Civ. P. 194.2(j)

A party may request disclosure of any or all of the following:

(j) in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills.

(emphasis added)

Typically a response to requests for disclosures generates a response consisting of medical records from chosen providers for treatment since the accident, and billing records only showing the amount charged. The former rarely reveals past treatment or problems with the same body parts. The letter does not give an accurate picture of what medical expenses will go to the jury and is an attempt to exaggerate the value of the case. Both have been screened by opposing counsel.

However, Tex. R. Civ. P. 194.2(j) actually gives the requestor the option of obtaining an authorization. The former rules arguably supported the requestor making the choice but this was changed in 1999. The defendant can change the wording of Rule 194.2(j) so as to request only an authorization. In In re Soto, 270 S.W.3d 732 (Tex. App.--Amarillo 2008, orig. proceeding), the defendant motorist served upon each plaintiff  a request for disclosure asking for “[a]n executed copy of the attached authorization permitting the disclosure of Plaintiff’s medical records and bills.” The Plaintiffs, in their responses, changed the wording of the request to the language of Tex. R. Civ. P. 194.2(j), and responded:

“[a]ll medical records and bills that are reasonably related to the injuries or damages will be filed by affidavit and copies will be furnished to Defendant’s attorney of record.”

None of the Plaintiffs executed an authorization. Defendants moved to compel and the trial court ordered “Plaintiffs [to] execute medical authorizations permitting defense counsel to obtain medical records …” Id. at 734. Plaintiffs argued that the rule gave themthe option of providing  records or an authorization. The court, looked back to its 2001 opinion in In Re Shipman, 68 S.W.3d 815, 820 (Tex. App.--Amarillo 2001, orig. proceeding), where it held that the 1999 new discovery rules allowed a party to obtain medical records of another party or obtain an authorization from another party by a request for disclosure. It stated it could not “but conclude that the option belongs to the party requesting disclosure, not the one responding to it.” “If a legitimate authorization is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records.” Id.

In the referenced 2001 case, In Re Shipman, the Amarillo court also dealt with the argument that a party cannot be forced to create an authorization, a document that did not previously exist. Id. at 819. The court stated:

Texas rules governing discovery were substantially revised effective January 1, 1999….former Rule 166b(2)(h) provided for the production of medical records upon receipt of a written request and required a party to produce the records or furnish an authorization permitting the full disclosure of medical records upon the receipt of a written request. However the former rule was not included in the revised discovery rules effective January 1, 1999. Under the revised rules, medical records of a party are subject to production under new Rule 194.2…Under these new rules, a party may obtain discovery of medical records of another party or obtain an authorization from another party by request for disclosure.

Id. at 819-820.

It disagreed that the responding party was forced to create a document that previously did not exist, but stated rather that the requesting party had been ordered to prepare the authorization.

The relator (plaintiff below) had argued the old standby cases on medical authorizations. First, he cited In re Guzman, 19 S.W.3d 522 (Tex. App.-- Corpus Christi 2000, no pet.) for its holding that the discovery rules do not permit the trial court to force a party to create documents which do not exist, solely to comply with a request for production. The Shipman court distinguished it as not having considered Rule 194.2(j) and (k), nor an earlier opinion, Martinez v. Rutledge, 592 S.W.2d 398, 400 (Tex. Civ. App.--Dallas 1979, writ ref’d n.r.e.), which held furnishing an authorization did not involve making a non-existent record. Id. at 820. Relator had also cited In re Colonial Pipeline Co. 968 S.W.2d 938 (Tex. 1998), in which the trial court had ordered relators to produce an inventory of discovery.  Relators in that case argued old Tex. R. Civ. P. 167, and case law to support that it should not have to create a document, to which the court of appeals agreed and found the trial court abused its discretion in ordering such. The Shipman court distinguished it as not involving a medical authorization, which at that time was authorized by former Rule 166b(2)(h).

What should the authorization look like?

The authorization should be HIPAA compliant. It must include these elements:

45 C.F.R.§164.508 Uses and disclosures for which an authorization is required.

(a) Standard: Authorizations for uses and disclosures—(1) Authorization required: General rule. Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.

(c) Implementation specifications: Core elements and requirements—(1) Core elements. A valid authorization under this section must contain at least the following elements:

(i) A description of the information to be used or disclosed that identifies the information in a specific and meaningful fashion.

(ii) The name or other specific identification of the person(s), or class of persons, authorized to make the requested use or disclosure.

(iii) The name or other specific identification of the person(s), or class of persons, to whom the covered entity may make the requested use or disclosure.

(iv) A description of each purpose of the requested use or disclosure. The statement “at the request of the individual” is a sufficient description of the purpose when an individual initiates the authorization and does not, or elects not to, provide a statement of the purpose.

(v) An expiration date or an expiration event that relates to the individual or the purpose of the use or disclosure. The statement “end of the research study,” “none,” or similar language is sufficient if the authorization is for a use or disclosure of protected health information for research, including for the creation and maintenance of a research database or research repository.

(vi) Signature of the individual and date. If the authorization is signed by a personal representative of the individual, a description of such representative’s authority to act for the individual must also be provided.

(2) Required statements. In addition to the core elements, the authorization must contain statements adequate to place the individual on notice of all of the following:

(i) The individual’s right to revoke the authorization in writing, and either:

(A) The exceptions to the right to revoke and a description of how the individual may revoke the authorization; or

(B) To the extent that the information in paragraph (c)(2)(i)(A) of this section is included in the notice required by §164.520, a reference to the covered entity’s notice.

(ii) The ability or inability to condition treatment, payment, enrollment or eligibility for benefits on the authorization, by stating either:

(A) The covered entity may not condition treatment, payment, enrollment or eligibility for benefits on whether the individual signs the authorization when the prohibition on conditioning of authorizations in paragraph (b)(4) of this section applies; or

(B) The consequences to the individual of a refusal to sign the authorization when, in accordance with paragraph (b)(4) of this section, the covered entity can condition treatment, enrollment in the health plan, or eligibility for benefits on failure to obtain such authorization.

(iii) The potential for information disclosed pursuant to the authorization to be subject to redisclosure by the recipient and no longer be protected by this subpart.

(3) Plain language requirement. The authorization must be written in plain language.

(4) Copy to the individual. If a covered entity seeks an authorization from an individual for a use or disclosure of protected health information, the covered entity must provide the individual with a copy of the signed authorization.

67 FR 53268, Aug. 14, 2002, as amended at 78 FR 5699, Jan. 25, 2013

See also Tex. Health & Safety Code §181.001, et seq.

Suggestions for the form of the authorization:

First, propose a reasonable time period prior to the incident. This may be five years, even seven years. State the time restrictions on the form. You may meet resistance regarding the discovery of medical records pre-dating the incident date. “[O]nly if the patient’s condition itself is a fact that carries legal significance and only to the extent necessary to satisfy the discovery needs of the requesting party will discovery be allowed.” Judge John K. Dietz, Discovery Practice Tips, 2011, quoting R.K. v. Ramirez, 887 S.W.2d 836, 842-43 (Tex. 1994). But what may seem not relevant to the alleged injuries may be relevant to claimed incapacity.

Second, resist the request to have the records your client or client’s carrier paid for delivered first to the plaintiff’s attorney to review, allegedly for privacy reasons. Agree to return records at the resolution of the case and to limit what may eventually go to the jury.

Third, check the line or box on the authorization that you want all records, but be prepared to negotiate so as not to be overbroad. Again, other conditions may be relevant to alleged incapacity.

Note, Tex. R. Civ. P 194.2(k) provides that the opposition is to be provided a copy of records obtained by authorization. What if you are able to get records without an authorization? You will still likely receive a request for production for all medical records obtained by subpoena.

What if, despite a great authorization, Plaintiff’s counsel claims the records are privileged?

The Texas Rules of Evidence provide that, in a civil case, a patient has a privilege to refuse to disclose and prevent others from disclosing confidential communications with a physician or (mental health) professional, and associated records. Tex. R. Evid. 509 (c) and 510 (b)

Exceptions are stated in Tex. R. Evid. 509 (e) (4) and 510 (d) (5), each of which read:

The privilege does not apply:

If any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.

This seems to come up more frequently in cases involving mental health records. The Supreme Court of Texas, in R.K. v. Ramirez, 887. S.W.2d 836 (Tex. 1994), thoroughly discussed the physical and mental health privileges and exceptions, in the context of the plaintiff seeking to discover past mental health records of the defendant doctor:

To summarize, the exceptions to the medical and mental health privileges apply when (1) the records sought to be discovered are relevant to the condition at issue, and (2) the condition is relied upon as a part of a party’s claim or defense, meaning that the condition itself is a fact that carries some legal significance. Both parts of the test must be met before the exception will apply. Even then, when requested, the trial court must perform an in camera inspection of the documents produced to assure that the proper balancing of interests, which we have described occurs before production is ordered.

Id. at 843. It had previously explained that “a mental condition will be a ‘part’ of a claim or defense if the pleadings indicate that the jury must make a factual determination concerning the condition itself. Id. Such is beyond mere relevance. The Austin Court in In re Chambers, 2002 Tex. App. Lexis 4567 (unpublished opinion) cited Coates v. Whittington, 758. S.W.2d 749,753 (Tex. 1988), a case involving a request for a mental exam: “The supreme court held that a plaintiff’s assertion of a routine mental anguish claim arising out of an injury does not place her mental health into controversy…” It also cited In re Doe, 22 S.W.3d 601 (Tex. App.--Austin 2000, orig. proceeding, mand. granted) for the holding that the plaintiff must assert a mental injury that exceeds the common emotional reaction to an injury of loss.

Some key things to look for when evaluating whether there is a realistic chance of obtaining mental health records are:

Allegations of extreme depression/inability to function in society;

Designation of a life care plan expert and the life care plan includes mental health costs;

Designation or indication plaintiff will call, mental health experts;

Hospitalization for mental health injury, after the incident suit is about; Id. at 607-608 (citing cases).


Claimed aggravation of a pre-existing mental or emotional condition; Attempt to recoup costs for mental health treatment.

You have the records, now what?

Don’t neglect reading the “legal documents.” Sometimes custodians write the most interesting things. Sometimes they don’t prove them up as business records. Sometimes they make interesting comments.

Regarding billing records, check the identity of the custodian. Is he or she an attorney? Is he or she with a medical factoring company? If it appears that a medical factoring company is involved, evaluate strategy. When do you want to force the issue? Depose the custodian or subpoena to trial? You may be able to mediate before joining that battle. Do the records themselves reveal the actual payment to the factoring company?

Check the billing records for mention of government funded payers such as Medicare, Medicaid, VA, Tricare. Their liens or subrogation interests will have to be protected, or at least, dealt with.

Also, regarding billing records, make sure the attached records and bills support the amounts the custodian gives in answer to the deposition on written questions. They often don’t….

Next thoroughly review and summarize the medical and billing information. Are additional providers identified? If so, decide whether to order records then or later. I often ask about the revealed additional providers at the plaintiff’s deposition, then decide whether to subpoena them.  Subpoenaing records from every provider mentioned in subpoenaed records on the basis simply that they are mentioned is a good way to find yourself defending a motion to quash.

Thoroughly review the records for prior complaints to the same body parts which are alleged to be injured in your case. Look for contradictions with statements made by plaintiff under oath, such as in interrogatories or depositions. Look for letters of protection and letters or reports addressed to plaintiff’s attorney or “To Whom it May Concern.”  They are hearsay within hearsay and should ultimately be excluded. Look for statements made by the plaintiff regarding his pain level or activities. If there are any that indicate he is doing well, save them for showing the jury.

Should medical records be used during the plaintiff’s deposition?

Ask yourself what is to be gained? At worst, using them in cross examination may give the Plaintiff and his attorney a heads up for how to explain awkward medical at the trial or mediation. However, there may be some cases where confrontation with Plaintiff may result in dismissal. In any event, Plaintiff will lie or not lie, and if he does, you will have the records with which to impeach him later.

Should medical records be read from in trial?

Not unless you want to alienate the jury while boring it to tears, as well as lose credibility with the judge.

Make sure the key records are introduced, by either you or plaintiff’s counsel, and use them to cross examine and/or use them in argument. In argument it is often a helpful to specifically refer to key parts of the records, but avoid reading all or large excerpts.

Should the entire stack of medical records be admitted into evidence?

Just offer either what Plaintiff has not offered, or what really makes your points but is lost in Plaintiff’s stack. The court may refuse to admit it on the basis of it being cumulative. It may be convenient and helpful to the jury to have a smaller exhibit to reference but the important thing is that what you want to emphasize is somehow in evidence.

As you have most likely obtained the medical records by subpoena and deposition on written questions, the records should already be proven up as business records, in compliance with Tex. R. Evid. 803 (6), so you have most of the work done for offering them into evidence.

However, sometimes the records you want to put in evidence contain hearsay within hearsay. Be familiar with the hearsay exceptions, especially Tex. R. Evid. 803(4), Statement Made for Medical Diagnosis or Treatment. Case law supports that the statements are from the patient to the physician.

Remember this if plaintiff’s counsel tries to offer into evidence a self-serving report or letter from the treating physician, which is itself hearsay, within hearsay, and developed to further the claim, and not for medical treatment purposes.


Medical and billing records used correctly can make or break the defense. There is no universal right way to approach or handle them. The only truly important thing is that the defense attorney know what they include, so (s) he will be able to go where they lead (additional providers, past complaints), or use to show inconsistencies.

“Chase after the truth like all hell and you’ll free yourself, even though you never touch its coat tails.” -Clarence S. Darrow

1 Low Back Pain, U. MD. Med. Ctr, (last visited July 1, 2016).

2 Chris Woolston, Neck Pain, HEALTHDAY, (last visited July 1, 2016).

3Jodi Helmer, Ouch! 5 Common Causes of Shoulder Pain, AARP (May 30, 2013),

4 Eric Metcalf, Why Knee Pain Worsens with Age, EVERYDAY HEALTH, (last visited July 1, 2016.)

5 Headache Statistics, I HATE HEADACHES, (last visited July 1, 2016.)