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Abstract

This paper examines a recent Maine Law Court decision, Kennelly v. Mid Coast, in which the Law Court held that the medical records of individuals not involved in a lawsuit, even when redacted of identifying materials, are protected from discovery orders in a malpractice lawsuit, where the records would be used to demonstrate a standard of care to be expected of the administering doctor. It then examines the privacy interests individuals retain in their redacted healthcare records more broadly, in part to emphasize the large variety of contexts in which this issue can come up, and also to show how other courts have ruled on this issue. It will then propose that the Law Court got this decision wrong, that while medical records are a sensitive category of information that deserve strong privacy protections, if the information is effectively redacted so that they are unidentifiable, excluding those records from a discovery order obstructs the work of trial lawyers more than securing any legitimate privacy interest. Under the theory of privacy propounded by the Law Court “[a] scrap of paper upon which a physician... wrote only the word ‘indigestion’ (a diagnosis) or ‘aspirin’ (a treatment) or ‘malingering’ (an evaluation) would ... be privileged,1” and this, the Article argues, is an error. Finally, this Article proposes that the Law Court should have adopted the middle ground proposed by Rachel Brown in her article Balancing Privacy and Proof: Discovery of Nonparty Medical Records that redacted patient information may be requested when the discovering party shows “good cause,” a higher standard than the typical “relevance” standard.2 This would balance the privacy interests of patients over their redacted medical records while also allowing for discovery in private suits where there is a compelling need for those records.

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