Brian C. Mardon and Stephen A. Iannacone write:
….. Medical records are one of the most recognized forms of privileged information, as communications between a patient and physician are confidential. While the plaintiff waives the physician-patient privilege on the mental or physical injuries and conditions at issue in his or her lawsuit, they do not waive that privilege with respect to unrelated illnesses or treatments.1 Once the defendant demonstrates that the records being sought relate to claims in the lawsuit, they must still obtain a written waiver of the privilege. Only the patient or authorized representative may waive the privilege to permit disclosure, as it is personal to the patient.2 This information cannot be waived by another party or an attorney.
Since the principle of “full disclosure” does not give the defendant a right to unfettered and uncontrolled disclosure, the question arises: Does the plaintiff have to initial box 9(a) of the HIPAA authorization allowing the disclosure of alcohol/drug treatment, mental health information, and HIV-related information when these potential medical conditions are not at issue in the lawsuit?
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