Accident Victim’s Attorney Asks Court to Limit Access to Medical Records

May 9, 2005

A lawyer for a woman suing over injuries from a 2001 car accident asked the Colorado Supreme Court to limit the other side’s access to her medical records, saying insurance companies have abused such information and need to be reined in.

Attorneys for the man being sued argue broad access is necessary to determine the extent of damages caused from whatever incident prompted the lawsuit.

The case is being closely watched by insurance companies and attorneys for victims and defendants, who want the court to provide more guidance in dealing with medical records.

Gloria Alcon, who was injured in a 2001 car accident with Ronald Spicer, sued him in Pueblo County District Court, claiming constant and worsening leg, back and neck pain had led to depression. She is seeking damages for past and future loss of wages and earning capacity and other claims.

After Alcon’s attorney, James Croshal, denied access to medical records held by Alcon’s primary-care physician, Spicer’s attorney requested a subpoena. District Judge David Crockenberg ordered Alcon to turn over medical and pharmacy records from the past 10 years. Croshal also is fighting the judge’s order to produce 10 years of income-tax returns.

Croshal said Spicer’s trial attorney and his insurance company were acting as defendants in personal-injury lawsuits and demanding irrelevant records to discredit the victim.

“We believe defendants want the information so they can wage a war against plaintiffs for records that would humiliate or embarrass these parties,” Croshal said. “They wanted to get those records so they could impeach her.”

Juries need to know whether plaintiffs have medical conditions or past injuries to parts of the body injured in the incident that prompted the lawsuit so damages can be appropriately calculated, said Spicer’s attorney, Richard Shearer.

The arguments came about a month after the court ruled defendants can obtain records related to the cause and extent of claimed injuries and damages, but cannot compel the plaintiff to authorize blanket releases of medical records for “generic, garden variety” claims of pain and suffering and loss of quality of life.

Shearer and Croshal told the court that trial judges need more guidance to determine how to handle disputes over how much of the doctor-patient privilege plaintiffs have to give up.

Justice Nancy Rice said the judge’s order in Alcon’s case was “extraordinarily overbroad,” and asked whether the court should order him to limit it or simply overturn it. Justice Michael Bender said the judge’s conclusion that Alcon waived all medical privilege “just ain’t so.”

Shearer said there has to be some way for a judge and attorneys to determine how much privilege the plaintiff gives up.

“If she wants future damages, we have a right to know what her general health is,” he said. ‘”And if it goes to trial, the jury will have a full deck to work with.”

Croshal suggested a compromise: require plaintiffs to turn over
five years of pertinent medical records from before the injuries
that prompted the lawsuit, and require them to turn over everything
related to treatment for those injuries.

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Topics Lawsuits Medical Professional Liability

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