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Driver who claimed medical emergency cannot reverse strategy and claim physician-patient privilege to avoid turning over medical records.

Medical records are privileged:  normally a person can decline to produce medical records even in response to a subpoena.  In order to sue on an injury, however, the victim must make his or her records availabe to the at-fault individual and his or her insurance attorneys.  The victim has voluntarily placed his physical condition "in issue" by filing suit.   If the victim does not allow access to these records, his or her injury claim must be dismissed.  Similarly, if the allegedly at-fault person wants to avoid turning over his or her privileged medical records, the defendant cannot rely on a medical emergency to explain the occurrence. He or she has placed the his medical condition "at issue."

In Thomas R. Kalinowski v. Robert T. McAlester and J & R Trucking, LLC, the insurance attorneys attempted to switch defense strategies mid-stream.  Initially, they claimed that McAlester left the roadway and struck the pedestrian Kalinowski as a result of a medical emergency.  In response to the Plaintiff's interrogatories, McAlester admitted taking Xanax several hours before the incident and turned over to the Plaintiff the Defendant's Emergency Room records.  It was claimed that the defendant's doctors would support this defense.

When the Plaintiff then sought additional medical records in order to confirm whether the incident was actually an unforeseeable "emergency," the insurance attorneys attempted to withdraw their medical excuses and to invoke the physician-patient privilege.  It didn't work.  The trial court allowed the change in strategy, but the injured man appealed and the Court of Appeals reversed.  The higher court noted that under the Michigan Court Rules when a party waives the physician-patient privilege, the privilege is waived "for that action."  Therefore, the trial judge committed an abuse of discretion, rendering a decision that was "outside the range of reasonable and principled outcomes" when he countenanced the invocation of the privilege after an initial waiver.  Having waived the medical privilege and provided medical information on one strategic course, the defense was not free to shift strategies and now claim the privilege.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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