Mark Tyson

In personal injury cases, the defense will, almost without exception, seek to obtain the plaintiff’s medical treatment records. Ordinarily, the defense will ask the plaintiff to sign a stipulation and authorization for the release of his or her medical records. But what if the plaintiff refuses to sign? Can the defense seek relief from the trial court?

The question of “whether a trial court has authority to compel personal injury plaintiffs to sign stipulations and authorizations allowing the defendant to obtain their medical records” was addressed by the Washington State Court of Appeals several weeks ago in Sastrawidjaya v. Mughal.[i]  There, the plaintiffs sued the defendant for negligence, claiming that they were injured in an automobile accident.  After learning the identity of the plaintiffs’ medical providers through discovery, the defendant sent the plaintiffs requests to sign stipulations and authorizations for the release of their medical records.  The plaintiffs refused to sign and, in response, the defendant filed a motion to compel production of the records, arguing that the plaintiffs had no excuse for refusing to sign the stipulations.  The trial court ordered the plaintiffs to sign the stipulations and authorizations for medical records.

The court of appeals reversed, holding that “[n]othing in the court rules or in Washington case law allows a trial court to compel a plaintiff to sign medical record stipulations.”[ii]  The court of appeals noted that while CR 26 gives a trial court broad authority to manage the discovery process, this discretion may only be used to limit discovery methods authorized by CR 26; notably, CR 26 does not authorize a trial court to compel a plaintiff to sign a medical record stipulation.  The court of appeals also observed that while CR 34 requires a party to produce certain documents in his or her possession, it does not require a party to stipulate to allow the opposing party to obtain documents independently.  Finally, the court of appeals declined to hold that a trial court has inherent authority to compel a plaintiff to sign a medical record stipulation, finding that the extra-jurisdictional case law cited by the defendant was unpersuasive, and noting “there does not appear to be any national consensus on this issue.”[iii]

So, where does this leave personal injury defendants who seek plaintiff’s medical records?  The defense is authorized by CR 45(a)(1)(C) to issue a subpoena, requiring the medical providers to produce the medical records.  Parties may also compel the attendance of the medical providers’ records custodians at a deposition in which they must produce the medical records under CR 30(a) and CR 45(a)(3).

With the knowledge that these records will be accessible to the defense by subpoena or deposition, most personal injury plaintiffs will continue to sign stipulations and authorizations for the release of their medical records, if for no other reason than to mitigate the time, cost, and combativeness of litigation. Therefore, on the whole, the Sastrawidjava decision is unlikely to alter the status quo.[iv]  But, in those cases where a plaintiff refuses to sign, the defense would be wise to subpoena the records from the plaintiff’s providers, rather than enlisting the court’s assistance in an attempt to compel the plaintiff to sign a stipulation and authorization for the release of their records.

[i] Slip op. No. 47777-7-II, 2016 Wn. App. LEXIS 2529 (October 18, 2016).

[ii] Id. at *9.

[iii] Id. at *8.

[iv] The precedential reach of this decision is limited, as it comes from Division Two of the Washington State Court of Appeals, and is therefore not binding on the Washington Supreme Court, the other two divisions of the court of appeals, or the trial courts within counties covered by the other two divisions of the court of appeals.