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Obtaining Your Spouse's Medical Records in a Family Law Case

pre-trial preparation Apr 27, 2017

If a case concerns custody or parenting time of the children one of the things the court is going to want to know about is the physical, mental and emotional well being of all involved parties. So if there is a physical, mental or emotional issue with a parent that will affect the children or will affect having the children in their care, by all means that person’s medical history is relevant and very possibly admissible at trial so that is something you are going to want to investigate.

There are a few ways to get medical records from the other party. One way is to ask the other party to provide the records to you. That is something I do a lot in my own cases, but there are times when I am concerned that the other party is not going to provide the full medical record. They may be hiding something or not disclosing something. So in those cases I opt to get the medical records myself. How I do that is I get ‘releases’ from the other side.

My strategy is to get the other side to voluntarily sign medical releases and I have copies of medical release forms that I have taken from the internet and adapted them to my practice. There are certain things that are required to be in these release forms so you need to do research because there is a certain language that has to be in them (HIPPA) for the protection of the person whom their medical records you are requesting.

What I do is I give the other side the medical release form and request they return it to me signed and give them a deadline to do so. If they do not return it by deadline then I take the next step which is I ask the court to order that person to sign the medical releases. What I do is provide the other party with blank medical releases as a lot of times I don’t know the names of the other parties medical providers so I will ask them to fill in the names of their doctors and their addresses. There are times that I do know the names of their medical providers so I fill in that information and ask the person to sign.

I do find that attorneys’ get nervous if you just send a blank release form with no medical providers filled in and ask them to sign it and return it without filling in the medical providers. This is like an open door to get whatever medical records you want when you want. So the more reasonable you are the more likely your chances of getting signed releases. I have only had trouble getting signed medical releases a few times which resulted in having to have a judge to order the release and I have never had trouble getting the judge to do so. But I only ask the court to do if the physical, mental or emotional condition is an issue especially when it comes to child custody or decision making.

There is another scenario where the person’s physical or mental health could be considered an issue and that is in spousal maintenance or alimony. There are times when a person may have a physical or mental issue that prevents them from getting a job or be able to get a certain type of job in their field of expertise. Another thing is that a lot of times you can get HIPAA releases online and some doctors have releases that are pre-printed that you can revise and give to the other party to sign.

Once you get the signed medical release and begin mailing or faxing these requests to the various medical providers you must be prepared to pay for those medical records. So it would be a good idea if your funds are limited to call the doctor’s office and find out how much they are going to charge you. You don’t want to be caught off guard as sometimes these medical records can be quite extensive and you are paying per page in many cases.

Wendy Hernandez is a family law attorney in Phoenix, AZ and founder of Command the Courtroom which teaches you how to handle yourself in court and achieve the best outcome when representing yourself in your divorce or child custody case.