Whether you must hand over to the defense lawyer your medical records unrelated to the injury you sustained in this accident is often a case specific decision. In fact, a case by case determination is the way the North Carolina Supreme Court decided this issue should be handled. In most cases the physician-patient privilege prevents disclosure of medicals records to others. The physician-patient privilege is rooted in public policy to “encourage the patient to fully disclose pertinent information to a physician so that proper treatment may be prescribed, to protect the patient against public disclosure of socially stigmatized diseases, and to shield the patient from self-incrimination.” Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990). Our Supreme Court has declined to hold “the physician-patient privilege is waived whenever a patient files a lawsuit in which his physical condition is an element of the claim or defense.” Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987). Instead, our Courts have held that the question of waiver is “to be determined largely by the facts and circumstances of the particular case on trial.” Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987). The physician-patient privilege is statutory. N.C.G.S. 8-53. This statute protects the information given to your physician unless that information is “necessary to a proper administration of justice.” N.C.G.S. 8-53. In North Carolina the physician-patient privilege exists “so long as the patient insists on it” and a trial court has not compelled disclosure to necessitate “a proper administration of justice.” Cates v. Wilson, 321 N.C. 1, 361 S.E. 2d 734 (1987), Crist v. Moffatt, 326 N.C. 326, 389 S.E. 2d 41(1990), N.C.G.S. 8-53. Therefore often a hearing must take place when a defendant wants prior medical records to determine whether it is reasonable to waive the privilege protecting them. If a Judge determines that the defendant’s interest in obtaining the records is “necessary to a proper administration of justice” then the records must be turned over regardless of the thoughts of the injured party. Often there is a separate, yet equally important issue, who is going to pay to order and obtain these prior records for the Plaintiff’s physicians? As the legislature and the courts have recently established that the costs to be awarded to the winning or prevailing party are limited to N.C.G.S. 7A-305(d)(10) and (11) and as the statutory costs of procuring medical records are clearly outlined in N.C.G.S. 90-411; these costs are not included in the recoverable costs statute. Therefore, a Plaintiff may have to pay to obtain their own prior records and then may not be reimbursed even if they win the case. This result seems wrong – the defense should be required to pay the statutory costs of obtaining the medical records pursuant to N.C.G.S. 90-411. As there is a clearly denominated amount to obtain the medical records that the legislature has stated is reasonable in nature N.C.G.S. 90-411 then it is only reasonable that the Defendants pay to obtain said records as this cost should be added to N.C.G.S. 7A-305(d)(10) and (11).
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