Washington Legislative Update: Washington’s New Law Restricts Access to Medical Records in Discrimination Suits

Washington Legislative Update: Washington’s New Law Restricts Access to Medical Records in Discrimination Suits

From the desk of John Kreutzer: Once a lawsuit is filed, the parties engage in discovery, where they exchange records and documents that are relevant to their respective claims and defenses. Recently, Washington’s legislature passed a law to prevent defendants from being able to obtain a plaintiff’s medical records related to the plaintiff’s noneconomic damages claim in suit brought under the Washington Law Against Discrimination (“WLAD”). Read on for a discussion on the new law that went into effect on June 7, 2018.

SB 6027 was first introduced on December 5, 2017. After being passed by both the House and the Senate, the bill was delivered to Washington’s Governor who signed the bill on March 15, 2018. The law provides that a plaintiff “does not place his or her health at issue or waive any health care privilege,” by seeking noneconomic damages in a discrimination suit under the WLAD.

The bill does provide three exceptions to this new rule. The first exception is applicable if the plaintiff alleges to suffer from a “specific diagnosable physical or psychiatric injury,” such as PTSD. The second exception applies if the plaintiff wishes to rely on the medial records or retains a health care provider or expert to testify. The third exception applies if the plaintiff is alleging discrimination on the basis of the disability or a failure to accommodate the disability.

Even when one of the three exceptions is found to apply, SB 6027 continues to restrict the defendant’s access to those records with two limitations. The first limitation provides that access to the records is limited to records that were either created or occurred in the time period that begins “two years before the first alleged unlawful act and [ends] on the last date for which the plaintiff seeks damages (absent exceptional circumstances).” The second...

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