In the waning days of session, plaintiffs’ attorneys are attempting to ram through sweeping legislation that would severely undermine a defendant’s ability to perform discovery in civil actions. If enacted, AB 815/SB 628 would tip the scales of justice overwhelmingly in favor of plaintiffs by limiting a defendant’s ability to access a plaintiff’s medical records during discovery. The legislation would also severely limit medical examinations when the plaintiff is claiming damages for injuries related to the accident. As a result of these far reaching proposals, AB 815/SB 628 will negatively impact that courts’ ability to search for the truth.

In turn, this will negatively affect the business community. Without proper discovery of prior medical conditions, plaintiffs’ attorneys will seek and obtain higher jackpots for injuries that could have occurred years prior to the accident and which have no relationship with alleged injuries in the civil action.

The Assembly Committee on Judiciary and Ethics has scheduled a public hearing on Tuesday, April 6 at 10:00 a.m., Room 225 NW, State Capitol.

AB 815/SB 628 Talking Points

Restricting Access to Medical Records Will Hamper the Court’s Ability to Search for the Truth and Will Lead to Fraud

• The bill requires that the defendant prove, by clear, satisfactory, and convincing evidence to a reasonable certainty, that additional discovery is essential to the defense relating to the cause of the plaintiff’s injuries.
  • This would make it virtually impossible for a defendant to obtain medical records without first having access to those records.
  • Another absurd result would be the defendant’s attorney having to accept the plaintiff’s word whether a similar physical injury existed before the accident.
• The legislation will clog courts with unnecessary motions filed by defense attorneys to justify the need to obtain records beyond those of the plaintiff’s attorney is willing to share on a voluntary basis.
• Current rules of evidence already require the courts to exclude at trial any records not relevant to the claims being asserted. Therefore, this bill is not only harmful to the judicial system, it’s simply unnecessary.
• There are no documented problems of plaintiffs’ privacy rights being violated. Existing laws protect patients’ records, and there are no documented problems of defense attorneys or insurers improperly using a plaintiff’s medical records.

Proposed Changes to Independent Medical Exams Will Further Conceal the Truth in Civil Actions

• By allowing the plaintiffs to electronically record the medical exam and have one or more witnesses, most physicians will simply refuse to perform such exams.
• In addition, the bill requires the medical exam to be conducted within 100 miles of where the party resides, is employed, or transacts business.
  • Very few physicians currently perform independent medical exams, and those that do typically are in large cities. By forcing the exams to take place within 100 miles of where the plaintiff lives, it will further make it unlikely that a physician will perform such an exam unless the plaintiff lives or works in a larger city.
• The bill prohibits the physician from inquiring into “any issue bearing on any party’s liability in the underlying issue.”
  • This could have the absurd result of prohibiting the doctor from simply asking how the accident occurred.