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 without the patient’s specific written consent. When litigation is involved, there are exceptions to the rule. One exception is during a divorce case when 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
There are two main issues that give rise to a need for medical records in divorce proceedings:
- When one party is seeking support from the other based on assertions that the party has a medical condition or disability that prevents the asking party from working.
- When the mental or physical well-being of one parent is relevant to the court’s decision on child custody and visitation.
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 hold a hearing where 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 fashion an order releasing all or relevant parts of the medical record. For example, medical records that predate the marriage are usually not part of the records that are released.