Motion for Protective Order for Medical Records Subpoena

Medical DocumentsBelow is a sample motion for a protective order for medical records. This motion seeks a protective order to prevent a mental health care provider from turning over therapy treatment notes and other records in a medical malpractice lawsuit.  

Sometimes, there is a tactical reason why defense lawyers do this. Often, it is just an opportunity to victimize the plaintiff a second time by uncovering her most private thoughts to embarrass and humiliate.

Will you win this kind of protective order/motion to quash? It depends on the facts of the case and the motions judge.

But in most cases, in our experience, defendants cannot advance any legally sufficient reason to warrant an invasion into Plaintiff’s mental health records.  Just filing a claim for personal injuries and seeking pain and suffering damages does not mean you are placing your mental health at issue and are waiving the protections and privacy afforded to you under Maryland law.

You can find a motion to keep mental health records out of evidence via a motion in limine after the records have been produced here.



Civil Case No.:



Plaintiff Jane Doe ("Plaintiff") files this Motion for Protective Order under Md. Rule 2-403 and seeks to quash subpoenas served on her former psychiatrist and psychologist.

  1. In January 2020 Plaintiff was sexually assaulted during a physical examination by an Acme Medical Group doctor, Defendant John Q. Doe, M.D. ("Dr. Doe").  Before he assaulted the plaintiff, Dr. Doe already had a known history of sexually assaulting female patients (he has since been criminally convicted).  
  2. Plaintiff is now suing Dr. Doe and Acme Medical Group for medical malpractice, battery, and other claims arising out of the sexual assault in January 2020.
  3. Even before she was assaulted by Dr. Doe in 2020, Plaintiff had preexisting mental health issues. Plaintiff had been receiving long-term care and treatment for her mental health problems at Random Lane Health Services ("Random Lane") in Baltimore.
  4. Defense counsel has now served subpoenas on 2 of Plaintiff's treating mental health doctors at Random Lane: Jack Helpful, M.D. and Janet Talker, LCSW-C (the "Random Lane Doctors"). The subpoenas seek to compel the Random Lane Doctors to appear for deposition and produce confidential medical records relating the intimate details of Plaintiff's psychiatric diagnosis, treatment, and counseling. Copies of the subpoenas are attached as Exhibit 1.
  5. Defendants' subpoenas to the Random Lane Doctors seek information that is protected by the patient-therapist privilege under Md. Cts. & Jud. Proc. § 9-109. This important statutory privilege precludes discovery of records and communications relating to the diagnosis and treatment of mental health conditions.
  6. Under Maryland law, “every citizen has a constitutional right of privacy in his or her medical records.”  Reynolds v. State, 98 Md. App. 348, 365 (1993).  The "rationale for the privilege is the recognition ‘of the societal importance of protecting the privacy encompassed by specified relationships.” In re: Matthew R., 113 Md. App. 701, 715 (1997).   
  7. Medical records also are protected by Maryland statutes.  The Maryland Confidentiality of Medical Records Act (“MCMRA”) mandates that a patient’s medical records are confidential and may not be disclosed except as expressly provided by law.  See Md. Code Ann. Health General, Section 4-302(a); Warner v. Lerner, 348 Md. 733, 705 (1998) (Raker, J., concurring) (stating that the Preamble of the MCMRA “manifests the intent of the General Assembly to protect the privacy of patients and to maintain the confidentiality of medical records”).  As a result, records containing “information about communications between the patient and their psychiatrist are presumptively privileged.” Reynolds, 98 Md. App. at 366 (1993).
  8. All the testimony and medical records subpoenaed from the Random Lane Doctors relate directly to the diagnosis and treatment of Plaintiff's unrelated mental health conditions.
  9. In addition to being privileged, Plaintiff's mental health treatment at Random Lane is also irrelevant to the claims in this case. Plaintiff's treatment at Random Lane involved preexisting problems dating back to her childhood that had nothing to do with Dr. Doe.
  10. Plaintiff's preexisting mental condition and her treatment by the Random Lane Doctors is not an element of her tort claims against Defendants in this case. Plaintiff can obviously prove that she was injured by Defendant's sexual assault without exposing the sensitive details of her prior mental health treatment.
  11. Allowing Defendants to depose and obtain treatment records from the Random Lane Doctors would effectively allow Dr. Doe to humiliate and victimize Plaintiff a second time. Dr. Doe is apparently seeking to defend his malicious sexual assault by claiming that Plaintiff was already mentally fragile when he assaulted her. This is not an acceptable or appropriate defense.
  12. Defendants' efforts to delve into the details of Plaintiff's prior psychiatric treatment is exactly what the statutory patient-therapist privilege is designed to protect.

WHEREFORE, for the foregoing reasons Plaintiff requests that the Court grant this Motion to Quash and enter a Protective Order quashing the subpoenas served on the Random Lane Doctors and precluding any further discovery requests regarding Plaintiff's prior mental health treatment.

Respectfully Submitted,

Medical Records Discovery Disclosure Law

This is a pretty bare-bones motion.  If you want to dig deeper into the law on the protection of mental health records, below is a cut and paste of the relevant portions of a motion in another case for those of you looking to take a deeper dive...

As no common law patient/psychiatrist confidentially privilege exists under Maryland Law, the state legislature by enacting Courts and Judicial Proceedings Article, Section 9-109. This statute protects patients who seek out treatment from mental health providers which include psychiatrists. The pertinent part of the statute reads as follows:

(b) Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing:    

1) Communications relating to diagnosis or treatment of the patient; or 

2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment….

(d) There is no privilege if:…

(3) In a civil or criminal proceeding:

(i) The patient introduces his mental condition as an element of his claim or defense; ... 

This privilege has been carefully guarded by our appellate courts. The Court of Special Appeals of Maryland in McCormack v. Bd. of Educ., 158 Md. App. 292 (2004), set forth the reasons for this protection when it stated:   

We begin our analysis by noting that ‘the psychotherapist-patient privilege is “rooted in the imperative need for confidence and trust."’  Jaffee v. Redmond, 518 U.S. 1, 10, 135 L. Ed. 337, 116 S. Ct. 1923 (1996) (quoting Trammel v. United States, 445 U.S. 40, 51, 63 L. Ed. 2d. 186, 100 S. Ct. 906 (1980).   

Highlighting the importance of that privilege, the Supreme Court stated: 

Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests. Effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.                               

As the Maryland Court of Appeals succinctly put it in Laznovsky v. Laznovosky, 357 Md. 586, 745 A.2d. 1054 (2000), "'many physical ailments might be treated with some degree of effectiveness by a doctor whom the patient did not trust, but a psychiatrist must have his patient's confidence or he cannot help him.'" Id. at 613 n.13, (quoting Taylor v United States, 95 U.S. App. D.C. 373, 222 F. 2d 398,401(D.C. Cir. 1955)). Indeed, the privilege not only serves the private interest of the patient ‘by protecting confidential communications between a psychotherapist and her patient from involuntary disclosure,’ but it ‘serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.’ Jaffee, 518 U.S. at 11. Nor can anyone dispute that ‘the mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.’  Id.

In actuality, the Defendants are asking this Court to hold that any time a Plaintiff files a claim for personal injuries and simply alleges in the Ad Damnum clause, mental anguish, pain and suffering, that he/she always “ introduces his/her mental condition” into the proceeding. Unfortunately for the Defendants, there is no Maryland appellate case that supports this position. In fact, the Defendants cannot cite a single Maryland case that holds that in a personal injury civil action wherein the Plaintiff has not alleged a specific mental injury and will not offer psychiatric testimony at trial - that this qualifies as a waiver of the privilege found in C.J.P. Section 9-109. 

Due to the lack of Maryland case law on this specific legal issue, the Plaintiff proffers that an analysis of federal law (in particular, how federal judges evaluate and balance the Defendants’ request for mental evaluations in civil matters) are dispositive in resolving the issue at bar. The ultimate outcome hinges on whether the Plaintiff has placed his/her “mental condition in issue”. 

Hill v. Huddelston, 263 F. Supp. 108 (D. Md. 1976) is perhaps the leading case on the waiver of the patient/psychiatrist privilege. That case involved a civil action for monetary damages arising out of a personal injury action. Mrs. Hill, a Maryland resident, was injured in an automobile collision in Tennessee. As part of her claim she alleged that “… her health has been permanently damaged by the physical and nervous shock, that she has been undergoing regular treatment for conditions caused by the accident and that her capacity to work and enjoy life has been permanently destroyed.”  Id. at 109.  The Plaintiff’s treating psychiatrist was deposed by agreement of the parties and provided testimony that the Plaintiff: 

…who is 55 years old, had suffered from headaches and other troubles for many years before the accident; that he saw her for the first time after the accident and treated her for headaches and depression, which might be related to each other in various ways; that there is a reasonable probability that the injuries sustained in the automobile accident were a factor aggravating the headaches, possibly causing depression also.

 Id. at 109. 

The doctor indicated on cross- examination “… that ‘other factors related to life events and personality make –up’ could have contributed to the depression and could have aggravated the headaches”. Id. at 109-110. 

When furthered questioned by defense counsel on these “other factors” the doctor refused to explain his answer invoking the psychiatric/patient privilege found in the Annotated Code of Maryland, Article 35, Section 13a. (which mirrors the current Maryland statute - C.J.P. 9-109). 

The court in Hill held that the Plaintiff’s allegations in her complaint coupled with the purported testimony of her psychiatrist regarding the “…possible effect of the accident on her physical, mental and emotional condition, including her headaches and depression, have introduced her mental condition as an element of her claim, and she has waived her right to claim any privilege under Art. 35, sec 13A, with respect to any communications relevant to her physical, mental, or emotional condition before as well as after the accident.” Id. at 110.    

The plaintiff in Hill, unlike the Plaintiff in this case, specifically claimed an aggravation of a pre-existing mental condition (i.e. her headaches and depression) as part of her claim and attempted to proffer expert testimony from her psychiatrist in support of same while in the same breath refusing to permit the Defendant from inquiring into her pre-existing mental health. The court correctly held that she waived her patient/psychiatrist privilege in so doing.  

Unfortunately for the Defendants herein, the damages claimed by Ms. Hill that resulted in a waiver of her psychiatric privilege are absent in the case at bar. The Plaintiff in this case: 1) is not making a claim for an aggravation of a pre-existing mental injury, 2) is not making a claim for any specific mental injury, 3) has specifically informed the Defendants (via the motion herein) that he will not mention any psychiatric care he may have received in the past, and 4) will not offer any psychiatric testimony at trial. It is the Defendants who are trying to interject the Plaintiff’s mental condition into this case for the sole reason of conducting a fishing expedition into his mental health records. This tactic is not authorized under Hill.

Maryland Rule 2-423 states:  “When the mental or physical condition…of a party is in controversy, the Court may order the party to submit to a mental or physical examination…” Federal Rule of Civil Procedure 35(a) requires a party to submit to a Physical or Mental Examination when “…the mental or physical condition…of a party…is in controversy…”   

A comparison of the state and federal rules applicable to mental examinations coupled with the legal analysis supplied by the federal bench warrants  only one conclusion - that the plaintiff herein has not placed his mental condition “in controversy” thereby preserving his privilege against disclosure of his mental health treatment records.  

In Turner v. Imperial Stores, 161 F.R.D. 89 (D.S.D. Cal 1995), U.S. Magistrate Judge Aaron held that a plaintiff who claimed damages for humiliation, mental anguish, and emotional distress arising out of a wrongful termination claim under Title VII of the Civil Rights Act of 1964 claim did not place her mental condition in controversy and denied the defendant’s request for an examination under F.R.C.P.  35.  

The defendant claimed that because the plaintiff claimed emotional distress in her pleading that “an independent examination is necessary because without it, Defendants will have no way of evaluating Turner’s claim of emotional distress.” Id. at 91. 

The plaintiff countered arguing that as she “has not received psychological care in relation to this action” the request is unwarranted. Plaintiff also proffered that “there is no mental disability claimed by Robin Turner. Her general damages consist of the distress and anxiety that arises in the normal course of human events when a person suffers the indignities and deprivation of human rights…the extent of her mental suffering is limited to anxiety and humiliation as would be expected of any victim of tortuous mistreatment.” Id. at 99-92. 

Judge Aaron then reviewed many cases wherein the federal court did and did not find that plaintiffs had placed their mental condition in controversy. Judge Aaron cited only three cases where the court ordered a mental examination when the plaintiff had simply alleged mental pain and suffering in their pleadings and announced that “...these three cases are the exception. Most cases in which courts have ordered mental examinations pursuant to Rule 35(a) involve something more than just a claim of emotional distress.” Id. at 1923. 

The majority of the cases that held to the contrary were similar to the case of Cody v. Marriott Corporation, 103 F.R.D. 421 (D. Mass.1984). Cody involved an employment discrimination action and the plaintiff therein was not required to undergo a mental exam by simply claiming emotional distress as part of her damages. U.S. Magistrate Judge Joyce London Alexander announced that, “The Court does not view the case at bar as an instance where the mental state of a party has been affirmatively placed in controversy.  Plaintiff merely has made a claim of emotional distress, not a claim of a psychiatric disorder requiring psychiatric or psychological counseling.” Cody at 423.  

Judge Aaron noted that the definition of “mental” as announced in by the court in Tomlin v. Holeck, 150 F.R.D. 628 (D. Minn. 1993), when addressing Rule 35(a) examinations refers “…. to ‘mental disorders and psychiatric aberrations.’”. For a Plaintiff to put his mental condition in controversy, “… ‘a plaintiff must  assert a claim of mental or psychiatric injury.’”  See Turner at 94.  Plaintiff  has not claimed any such injury in this case. 

In summation, Judge Aaron announced that “… courts will order plaintiffs to undergo mental examinations where the cases involve, in addition to a claim of emotional distress, one or more of the following: 1) a cause of action for intentional or negligent infliction of emotional distress; 2) an allegation of a specific mental or psychiatric injury or disorder; 3) a claim of unusually severe emotional distress, 4) plaintiff’s offer of expert testimony to support a claim of emotional distress; and/or 5) plaintiff’s concession that his or her emotional condition is ‘ in controversy’ within the meaning of Rule 35(a).” Id. at 95. 

The court concluded its opinion with the following analysis which mirrors the Plaintiff’s position in this case. 

Robin Turner has not placed her mental condition ‘in controversy’ within the meaning of Rule 35(a) of the Federal Rules of Civil Procedure by claiming damages for ‘humiliation, mental anguish, and emotional distress.’ Turner has not brought a cause of action for either intentional  or negligent infliction of emotional distress; she has not alleged that she suffers from specific psychiatric injury or disorder as a result of the defendants’ conduct; she does not claim to suffer from  unusually severe emotional distress; and she does not concede that her mental condition is ‘in controversy’. 

Rather, she merely claims damages for emotional distress which she says that she suffered as a result of the defendants’ actions alleged in her complaint. This Court is unwilling to set a precedent requiring a party to undergo an independent psychiatric examination merely because the party claims damages for emotional distress in her complaint.

Turner  at 98. 

Footnote 4 in the opinion speaks volumes to the Defendant’s attempt here to wrongfully delve into the Plaintiff’s mental health records and reads: “ ‘ …Sweeping examinations of a party who has not affirmatively put into issue [her] own mental …condition are not to be automatically ordered merely because the person’ has made a claim of emotional distress…‘ To hold otherwise would mean that such examinations could be ordered routinely in cases where there is claim of damages for emotional distress.’” Turner at 97.  

Judge Gawthrop in the case of Smith v. J. I. Case Corporation, 163 F.R.D. 229 (D.E.D.Pa.1995) perhaps captured best the trial tactics attempted by defendants who try to wrongfully access a plaintiff’s mental health records in a personal injury claim. The Plaintiff in Smith was injured by a backhoe and filed a products liability action against the manufacturer. Judge Gawthrop’s stern holding follows: 

For the reasons discussed above, the court also determines that the defendant is not entitled to the plaintiff’s psychological records, with the exception of the records kept by the behavioral psychologists whose bills the plaintiff claims are compensable damages in this case. Any psychiatric disorders from which the plaintiff has suffered are not relevant to this case. Further, so long as the plaintiff does not claim that the psychological treatment for the ‘embarrassment’ which he suffers as a result of this injury is compensable, I shall not require him to provide defendant with records of therapy sessions in which he discussed this issue. Even if certain of these records are not privileged, which the defendant argues, they concern very private matters which I shall not order the plaintiff to divulge in the absence of evidence that they will lead to discovery of admissible evidence. The practice seems to be more and more in vogue of late for defendants to seek to partake of the in terrorem tactic of visiting upon a plaintiff a particularly intrusive incursion: examination by a psychiatrist, and other psychological delvings. Discovery has its virtues; trial by ambush has gone the way of copies by carbon paper. Procedural foreplay has become a cottage industry. Litigants now largely spend their time not in the courtroom battles, but in pretrial skirmishes - which is probably a good thing, as we hardly have enough courtrooms to contain today’s barristerial throngs. But is has been observed in some quarters that discovery has on occasion even been used as a delaying tactic, a procedural roadblock to trial. So also, some have suggested that it has been used in a way to harass and intimidate plaintiffs into dropping their lawsuits, rather that subjecting themselves to the gauntlet of pretrial probings. This squarely falls within that category and is not to be countenanced…. In cases such as this one  - your garden variety tort quest for damages, to include pain and suffering - psychiatric examination should be the exception, not the rule. 

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