Opinion
Delivered December 10, 1990
The Arkansas Supreme Court Committee on Civil Practice had proposed changes to A.R.C.P. 35 and A.R.E. 503. The proposals are published herewith. Before deciding whether to adopt the proposals the court would appreciate receiving the comments of members of the bench and bar.
Comments may be made directly to this court. They may also be made by letter to the committee reporter at the following address:
Professor John J. Watkins Leflar Law Center Waterman Hall University of Arkansas Fayetteville, Arkansas 72701
Rule 35, Arkansas Rules of Civil Procedure, is amended by adding the following new subdivision (c):
(c) Medical Records. Where a party relies upon his physical, mental or emotional condition as an element of his claim or defense, he shall, upon the request of any other party, execute an authorization to allow such other party to obtain copies of his medical records; provided, however, a party shall not be required, by order of court or otherwise, to authorize any communication with his physician or psychotherapist other than (1) the furnishing of medical records, (2) communications in the context of formal discovery procedures, or (3) informal conference in the presence of the party's attorney. The term "medical record" means any writing, document or electronically stored information pertaining to or created as a result of treatment, diagnosis or examination of a patient.
The following amendment to the Reporter's Note accompanying Rule 35 is adopted:
Addition to Reporter's Note, 1990 Amendment: New subdivision (c) of this rule sets out the circumstances under which a party must authorize release of his medical records to another party. It also makes plain that a party may not be required to allow an adversary to communicate with the party's physician or psychotherapist outside the formal discovery process or out of the presence of the party's attorney. This safeguard is deemed necessary to protect the confidential relationship between a party and his physician or psychotherapist.
Rule 503, Ark. R. Evid.
Rule 503, Arkansas Rules of Evidence, is amended as follows:
1. By adding the following as new paragraph (5) to subdivision (a) of the rule:
(5) A "medical record" is any writing, document or electronically stored information pertaining to or created as a result of treatment, diagnosis or examination of a patient.
2. By amending subdivision (b) of the rule by adding the phrase "his medical records or" after the word "disclosing" and before the word "confidential."
3. By deleting paragraph (3) of subdivision (d) of the rule and replacing it with the following:
(3) Condition an element of claim or defense. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense; provided, however, a patient shall not be required, by order of court or otherwise, to authorize any communication with any physician or psychotherapist other than (A) the furnishing of medical records, (B) communications in the context of formal discovery procedures, or (C) informal conference in the presence of the party's attorney.