David G. Wirtes, Jr. and George M. Dent, III
(Part 1 of this article appeared in the November 2016 issue of The Alabama Lawyer.)
A. Discovery of Medical Records
1. State Law
Section 10 of the Alabama Constitution of 1901 guarantees the “Right to Prosecute Civil Cause:” That the great, general, and essential principles of liberty and free government may be recognized and established, we declare: ... That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party.
Ala. Const. 1901, Section 10. This section “elucidates this state’s commitment to protect an individual’s right to attain an adjudication on the merits.” Section 13 of the Alabama Constitution of 1901 guarantees a right to a remedy, stating “every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.” Ala. Constitution of 1901, Section 13.
Rule 26(b)(1), Ala. R. Civ. P., states the scope of discovery in Alabama as follows:
Rule 26. General Provisions Governing Discovery
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
According to the Committee Comments on the 1973 adoption of subdivision (b), "The purpose of discovery is to allow a broad search for facts, the names of witnesses, or any other matters which may aid a party in the presentation of his case." "In simplest parlance, it was, at an early date, held that discovery cannot be defeated by a cry of 'fishing expedition.'"93
Rule 401, Ala. R. Evid., provides the definition of "relevant evidence": "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
A 2010 amendment to Rule 26(b)(2), modeled after amendments to the corresponding federal rule, speaks to discovery of electronically stored information including electronic medical records: 2) Limitations.
(A) A party need not provide discovery of electronically stored information from sources that the party identifies to the requesting party as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause for compelling the discovery, considering the limitations of subdivision (b)(2)(B) of this rule. The court may specify conditions for such discovery.
Rule 26(b)(2). The Committee Comments concerning this new language are instructive.94
2. Federal Law
Discovery of medical records, including new electronic records, is governed largely by Fed. R. Civ. P. 26 and 34.96 The 2006 and 2015 amendments to Rule 26(b) substantially rewrote the rule. The 2015 amendment, with its emphasis upon restricting discovery to what is "proportionate" to claims and defenses, will be construed in forthcoming opinions.
The Advisory Committee's Notes provide insight about what the Supreme Court intends through promulgation of the 2006 and 2015 amendments. The official notes concerning the 2006 amendment ensures medical records are discoverable even when objections based upon claims of privilege are asserted. The official notes to the 2015 amendments ensure continuing discoverability of electronic records, so long as "proportionate" to claims or defenses.
A. State Law
The State of Alabama considers hospital records trustworthy as shown by the codification of a statutory procedure allowing the introduction of certified copies of original hospital records without having to call to trial or depose records custodians or physicians to authenticate and/or establish an evidentiary foundation. Sections 12-21-5 through 7, Ala. Code 1975, provide a practical procedure whereby copies of patients’ medical records are admitted in court proceedings without the unnecessary expense and delay in calling the custodian to lay a foundation or predicate for admissibility. Section 12-21-5 covers the admissibility of copies of hospital records,98 while § 12-21-6 covers “subpoena duces tecum; inspection form; [and] weight” for copies of hospital records.”99 Section 12-21-7 covers certificates of custodians for copies of hospital records.
In practical terms, once the hospital custodian receives a subpoena duces tecum, the custodian must copy the patient’s medical records as provided in sections 12-21-6 and -7, and must forward the certified medical records to the court’s clerk for admission at trial. Once submitted to the court under this statutory procedure, the records are considered self-authenticating business records. Specifically, medical records come within an exception to the hearsay rule as business records, Rule 803(6), Ala. R. Evid., and they contain statements for purposes of medical diagnosis and treatment, Rule 803(4), Ala. R. Evid. Such records come within the omnibus provision of Rule 901(b)(10), Ala. R. Evid., which allows for authentication by any means provided by statute or other rules prescribed by the Alabama Supreme Court, i.e., Rule 902(11), Ala. R. Evid., under which such records are self-authenticating as certified domestic records of a regularly conducted activity.
In Jackson v. Brown, 49 Ala. App. 55, 268 So. 2d 837, 841 (Ala. Civ. App. 1972), the court of civil appeals held that the custodian’s certificate, including the language quoted above, “was evidence of the reasonableness of the hospital charges, which charges thus were properly before the jury for their consideration as elements of damages.”
B. federal Law
The Federal Rules of Evidence allow electronic medical records to be admitted over a hearsay objection if two conditions are satisfied: (1) the record is made “in the course of a regularly conducted activity of a business ...”; and (2) it is “regular practice” to create such a record.101 Additionally, such records must be authenticated before they may properly be admitted.102
V. Exceptions to Discoverability and Admissibility
a. Quality assurance, Peer review and Utilization review Committee statutes
Healthcare providers often object to the discoverability and admissibility of medical records and assert claims of privileges premised upon Alabama’s so-called quality assurance, peer review, and utilization review committee statutes. Close evaluation of the plain language of the governing statutes provides clear insight into how the statutes should be construed. Further, state and federal reported opinions from Alabama and elsewhere construing Alabama’s and other states’ statutory schemes provide insight.
1. Quality Assurance
Section 22-21-8, Ala. Code 1975, governs the “Confidentiality of accreditation, quality assurance credentialing materials, etc.” What is this statute intended to do?
a. Definitions of the Terms in § 22-21-8
Section 22-21-8 refers to “accreditation materials” and “quality assurance credentialing materials,” “accreditation function” and “quality assurance function,” “an employee, adviser, or consultant of an accrediting agency or body,” and to “an employee, adviser or consultant of a quality assurance agency or body”. What do these words and phrases mean? “Accreditation” is defined as “the act or process of accrediting,” while “accredit” is defined as “to give official authorization to or approval of ... to vouch for officially: recognize or clear officially as bona fide, approved, or in conformity with a standard.”104 As an adjective, “credential” is defined as “giving a title or claim to credit or confidence: ACCRED-ITING–used chiefly in the phrase credential letters.”105 As a noun, a...