United States: New Washington State Law Restricts Permissible Discovery Of Plaintiff's Medical Records In Discrimination Lawsuits

A new Washington law (SB 6027) impacts the scope of discovery of a plaintiff's medical records in litigation brought under Washington's Law Against Discrimination ("WLAD").  The law will become effective on June 7, 2018.

Under the new law, a WLAD plaintiff who seeks non-economic damages (such as emotional distress) is deemed to have thereby waived the privileged status of medical records only when: (a) the plaintiff alleges that a specific diagnosable physical or psychiatric injury was caused by a defendant's conduct; or (b) the plaintiff relies on the records or testimony of a healthcare provider or expert to seek general damages; or (c) the plaintiff alleges failure to accommodate a disability or discrimination on the basis of a disability.  Thus, for example, a non-disabled plaintiff who seeks only generalized emotional distress damages and who does not rely on a medical provider or expert will not be deemed to have automatically waived the physician-patient or psychotherapist-patient privileges.

Further, even if one of these circumstances applies, the automatic privilege waiver is limited to records that both: (a) were created or occurred in the period beginning two years before the first alleged unlawful act and ending on the last date for which the plaintiff seeks damages (absent exceptional circumstances); and (b) are specifically related to a diagnosable condition for which the plaintiff seeks damages, to a healthcare provider on which the plaintiff relies, or to the disability specifically at issue in a disability-related lawsuit.

The new law, which was championed by the plaintiff's employment bar, is a significant departure from existing law.  In the 2013 case of Lodis v. Corbis Holdings, the Washington Court of Appeals held that a plaintiff who seeks damages for alleged psychological harm thereby waives the psychotherapist-patient privilege.  The new law modifies that holding in connection with actions brought under the WLAD.

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