You have just received a letter from the opposing party asking that you sign a release for your medical records. Can they obtain the records? The short answer is yes; under certain circumstances your medical records may be relevant and it may be possible to subpoena the documents. However, due to the private nature of health information you must either give your permission in advance by signing a release, or the person seeking the subpoena must seek court permission if you refuse to sign a release. Absent a release or court order the health care provider should not be providing any information.
The basis to object to a request to release the records depends on whether the documents requested are relevant to an issue in the case. The request cannot be used simply because the other party is curious or wants to harass or embarrass you.
Whether your medical records are relevant in your case depends upon the issues in dispute. If you are requesting spousal maintenance and are claiming you cannot work because of your medical condition, then your medical records may be relevant to show whether your medical condition prohibits you from working.
If parenting time is in dispute and you or your spouse are claiming that a medical condition affects the ability to parent, then medical records may be relevant to issues of parenting time. If either parent has seen a counselor or is in therapy, mental health records may be relevant to parenting time.
Talk to your lawyer about your rights. There are a number of options that may be available to keep or prevent the disclosure of your information if requested by the other party. If the records are not relevant to any issue and are just being requested to harass you, then your lawyer may be able to obtain a protective order so that the records do not have to be disclosed, or for the disclosure to be limited.
If documents are released to the other side, talk to your lawyer about obtaining a confidentiality order to limit distribution and use of the documents. A confidentiality order may contain provisions that (1) provide only the parties, their attorneys, and experts may review; (2) none of the documents may be filed with the court except under seal; (3) all documents must be returned to the other party at the conclusion of the litigation; and (4) limitations on making copies of the documents. Depending on the nature of the documents, there may be additional safeguards that should be considered before agreeing to the release of records.
In addition, if the documents are relevant there may be the opportunity to see if you can obtain the documents first and redact any parts that are not relevant to the action. For example, if therapy records are sought and only some of the records relate to issues relevant to the divorce, then seeking a request to limit the information produced to certain topics or issues is also an alternative to limit information. This may be something that can be agreed and stipulated to by the attorneys, or by order of the court.
While different forms of discovery, especially subpoenas of highly sensitive or confidential information, may feel as if the other party is simply trying to harass you, there are times when the information can be extremely helpful to you. For example, if records do show you have medical conditions that limit your employment opportunities, then you may wish to produce the documents in advance of any subpoena. Similarly, records that show you have participated in counseling or addressed certain issues that otherwise may have affected your parenting time, may also be records you want to produce to strengthen your position.