Medical Records in Will Contests under Texas Law: Confidentiality and Privileges

EDITOR’S NOTE:

A will contest or dispute under Texas law may involve issues surrounding medical or psychological help. In this blog post, we review the balancing act between a right to privacy and the discoverability of this type of documentation. If you or a loved one are facing a possible will contest in the Dallas area, reach out to one of our lawyers who specialize in will contests for a consultation.

Will Contests Under Texas Law

Nearly every will contest will involve evidence of the decedent’s mental and/or physical health. Two common challenges to a last will and testament include a lack of testamentary capacity and undue influence. Successfully proving one or both of these challenges often involves an extensive collection and review of the decedent’s medical records from a relevant time period.

Health records are, generally speaking, protected from disclosure. In shaping the statutes and rules that prevent disclosure, however, the Legislature balances the need for this important evidence in the resolution of a dispute with the interest in providing a confidential environment where a patient can candidly discuss their condition with their healthcare provider. What often results is an exception to the general rule that these records should remain private – even after a person dies.

A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. In a civil case, a patient has a privilege to refuse to disclose and to prevent any other person from disclosing: (a) a confidential communication between the patient and a professional, and (b) a record of the patient’s identity, diagnosis, evaluation, or treatment that is created or maintained by a professional. This privilege may be claimed by the patient or the patient’s representative on their behalf. Importantly, this privilege does not apply if any party relies upon the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication is relevant to that condition, as is often the case in many will contests.

Communications between a patient and a professional, and records of the identity, diagnosis, evaluation, or treatment of a patient that are created or maintained by a professional, are confidential. This privilege of confidentiality may be claimed by the patient or certain specified persons. In the case of a deceased patient, the privilege of confidentiality may be claimed by the decedent’s personal representative. A professional may disclose such confidential information in a variety of scenarios, including in a judicial proceeding relating to a will if the patient’s physical or mental condition is relevant to the execution of the will.

The Mental Health Information Privilege (a rule of evidence), for example, does not apply if any party relies upon the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication is relevant to that condition. Likewise, the Mental Health Chapter of the Health Code authorizes the disclosure of otherwise confidential information in a will contest if the patient’s physical or mental condition is relevant to the execution of the will. Exceptions like these highlight the often integral role that a decedent’s medical and mental history play in a will contest. They dovetail perfectly with the will contest party’s entitlement to communications and records of the decedent relating to the decedent’s mental or testamentary capacity specifically provided for by the Texas Estates Code.

In sum, our probate litigators are frequently tasked with seeking, gathering, analyzing and then using (as evidence) important medical records that would under other circumstances be private and confidential. Hospitals, doctors and opposing parties tend to object to these activities with some regularity. In the balancing act, it is clear that our Legislature and our courts place the interest of full disclosure in a lawsuit above the interest of maintaining privacy and confidentiality – often placing these records front and center in many forms of probate litigation.

EDITOR’S SUMMARY

In this blog post, we learned some of the issues surrounding rights to privacy vs. the discoverability of key documentation in a will contest under Texas law. Texas Courts have weighed in on these issues during estate, probate, and trust litigation. If you or a loved one is facing potential will litigation under Texas law, reach out to one of our Dallas-based attorneys for a consultation. Every case is different, and it’s critically important to speak with an attorney who specializes in will contests under Texas law.