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Access to Medical Records in a Divorce

Sep 01

Access to Medical Records in a Divorce

Divorce and Access to Medical Records

 
According to the federal Health Insurance Portability and Accountability Act (‘HIPAA’), all medical records are private and, as a rule, not accessible to anyone but the patient and their doctor without the patient’s specific written consent. When litigation is involved, there are exceptions to the rule. One exception is during divorce cases in which the physical or mental health of one of the parties is at issue. Although the Texas Evidence Code supports the rule that medical records are privileged, there is a code section that creates an exception to the privilege. Specifically, according to Texas courts, when a party’s mental or medical condition is “of legal consequence to a party’s claim or defense,” the medical records are discoverable and may be admitted into evidence to help the court in making an informed decision on the contested issue.

 

Medical Records in Divorce Proceedings

Medical records may come in to play if one party seeks support from the other (based on assertions that a medical condition or disability prevents them from working) or the well-being of one parent is relevant to the court’s child custody and visitation decision. The party who alleges a need for the medical records must file a motion with the court outlining why the records are necessary. The party who objects may file an opposition. The court will then hold a hearing so both parties can present evidence. If, after weighing all the evidence, the court decides the records are discoverable, they will be released to the moving party. The court may also fashion an order that releases only relevant parts of the medical record. For example, medical records that predate the marriage are usually not released. If you are concerned your medical records may be requested in your divorce, talk to an experienced lawyer immediately to best represent you.

 

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