dissenting
I believe that affirming the trial court’s action in this case significantly threatens the physician-patient privilege in Indiana and, more importantly, unnecessarily compromises the confidentiality of privileged medical records of future civil plaintiffs. I therefore respectfully dissent from the majority’s conclusion that the trial court did not err in permitting the Hunleys to obtain Patricia’s medical records directly from her health care providers without first giving her an opportunity to inspect the materials they propose to send.
The relevant facts are not in dispute. Patricia produced the requested medical records for the Hunleys’ inspection. Apparently concerned that they had not received all of the records, the Hunleys served the Andreat-tas with a Trial Rule 34(C) nonparty request for production of documents and subpoenas, seeking to obtain Patricia’s medical records directly from the providers. The Andreattas objected and moved to quash on the ground that they were entitled to view the medical records that the various health care providers proposed to send before they were viewed by the Hunleys, in order to determine whether any materials would be covered by doctor/patient privilege. The trial court denied the Andreattas’ request. The majority affirms that action and holds that a civil plaintiff does not have a right to review medical records that a health care provider proposes to send in response to a discovery request.
I address initially the Hunleys’ claim that none of Patricia’s records are privileged. The Hunleys note that Patricia’s complaint for damages claimed injuries to the whole person. They argue, “Given such a broad spectrum of injuries, it is hard to imagine any information in Mrs. Andreatta’s medical records which would not be causally and historically relevant to her claimed injuries.” *1160Appellee’s Brief at 9. I cannot agree that personal injury plaintiffs waive the physician/patient privilege entirely with regard to all of their medical records when claiming injuries to the whole person. Among other things, it is common practice in the course of personal injury litigation to describe the degree of permanent impairment in terms of disability of the whole person. Thus, when Patricia claimed an impairment of her ability to function as a whole person, she.was not saying that every component of her person was impaired by the claimed degree. Rather, she was claiming that the injured member or component, in this case her leg, impaired her ability to function as a whole person by the claimed degree. Viewed in this light, it is clear that a claim of impairment of the whole person does not necessarily make all of a personal injury plaintiffs medical records and medical history relevant in a negligence lawsuit.
In Canfield v. Sandock, 563 N.E.2d 526 (Ind.1990), our supreme court explained the danger of such an expansive interpretation:
Under Canfield’s interpretation of Collins, all of the files maintained by both doctors would be fully discoverable, without exception or limitation. This is untenable. It is possible that the information contained in the doctors’ files is relevant to the cause or is irrelevant but innocuous. It is equally possible that the information contained in the documents, whether accumulated over year's of treatment by the family physician or noted in the general medical history which most doctors take from new patients before beginning a specific course of treatment, could reveal a past or current medical condition which is totally unrelated to the condition in issue and the revelation of which would strike at the heart of the physician-patient privilege.
Full and unlimited disclosure of the subpoenaed medical records could reveal, for example, that the plaintiff had been tested for or diagnosed as having AIDS or some other sexually transmitted disease or that a female plaintiff had undergone an abortion procedure. Clearly, none of this information has the slightest causal or historical connection to the condition in issue nor any possible relevance to the trial of this cause. It would not be admissible at trial, nor could it be characterized as “reasonably calculated to lead to the discovery of admissible evidence.” A construction of the rules governing the discovery process which would authorize the disclosure of unrelated and potentially embarrassing or ruinous information could only undermine the purpose of the physician-patient privilege.
Canfield v. Sandock, 563 N.E.2d at 530 (emphasis supplied). I therefore would decline the Hunleys’ invitation to deem a claim of impairment that includes an assessment of disability of the whole person as a wholesale waiver of the physician-patient privilege.
The real issue here is whether a discovery request pursuant to T.R. 34(C) can be used to attain a personal injury plaintiffs medical records directly from providers without the patient first having a chance to review the materials that the provider proposes to send. I would answer that question in the negative based upon three cases previously decided by Indiana appellate courts, i.e., Canfield v. Sandock, 563 N.E.2d 526, Owen v. Owen, 563 N.E.2d 605 (Ind.1990), and Cua v. Morrison, 626 N.E.2d 581 (Ind.Ct.App.1993).
In Canfield v. Sandock, 563 N.E.2d 526, as here, the court focussed generally upon the “task of delineating the respective boundaries of the physician-patient privilege and the scope of discovery where the two are in conflict.” Id. at 528. The Andreattas are correct in noting that Canfield did not specifically address the propriety of a T.R. 34(C) request directly to a health care provider. Indeed, my research reveals that the instant case is the first in which an Indiana appellate court has decided that a T.R. 34(C) discovery request can be served directly upon a health care provider and that the subject of the records need not be given the opportunity to inspect the materials produced in response to the request.
The majority accepts the Hunleys’ argument that they are entitled to receive medical records directly from Patricia’s providers unless the Andreattas assert a claim of privilege with regard to specific records. Citing Cua v. Morrison, 626 N.E.2d 581 and Can*1161field v. Sandock, 563 N.E.2d 526, the majority concludes that it was incumbent upon the Andreattas to identify which of those documents they believed were privileged. The majority is satisfied that the privilege is protected and confidentiality is not threatened because Patricia knows what, is in her record and may view her own records at will. Therefore, the majority reasons, Patricia does not need to review her records in order to assert a claim of privilege because she already knows what is in her own records.
This view misses the mark for tw<3 reasons. First, although Patricia knows what is in her records, she does not know what is in the materials that will be sent to the Hunleys in response to the discovery request. For instance, at oral argument before this court, the Andreattas’ counsel recounted previous occasions when a health care provider mistakenly included the medical records of others, including family members, in the materials sent in response to a civil defendant’s discovery request. Second, a discovery request such as the one at issue here directs the health care provider to send medical records relevant to a certain injury or condition. Such an order allocates to the provider the responsibility of deciding which materials comply with the request and which do not. If the provider decides that certain material is responsive, then the material is sent, regardless of whether the plaintiff would agree that it should be included. The plaintiff would not know what material was sent because he did not have a chance to inspect the materials that the provider proposed to send prior to their being sent. The curious result of such a rule is that, while we do not ask the defendant to trust the plaintiff on the question of whether medical records provided by the plaintiff were complete and accurate, we require the plaintiff to trust that the provider will send materials that comply perfectly with the defendant’s request, without mistake of fact or judgment. I believe that this asks too much of a plaintiff, especially when the material at issue is something as sensitive as medical records.
In my view, there is an analogous situation in the litigation setting. Before trial, both sides are required to divulge the evidence that they propose to introduce, including physical evidence. This permits the other party an opportunity to view the evidence in order to avoid surprises. Presumably, in most cases, the parties avail themselves of the opportunity and examine the evidence. Yet, when the evidence is introduced at trial, counsel is afforded the opportunity to inspect the evidence which has previously been viewed in order to insure that it is the same evidence and in the same condition as when last he saw it. The majority’s holding would deny that opportunity to the Andreattas when it comes to Patricia’s medical records.
It seems to me that the majority implicitly agrees with the Hunleys’ view that the An-dreattas’ motion to quash is the functional equivalent to an assertion of privilege as to all of Patricia’s records. I do not. The Andreattas merely seek the right to inspect the medical records in order to determine whether any of the material contained therein is subject to a claim of privilege. I believe this is the correct perspective from which to consider the Andreattas’ motion to quash.
Canfield v. Sandock and Cua v. Morrison, the preeminent cases decided by our appellate courts on the subject, have recognized the importance of protecting the physician-patient privilege and have sought to preserve the privilege, while still affording defendants in personal injury lawsuits access to all of a plaintiffs medical records that are relevant to that plaintiffs particular claim. I believe that protection of the physician-patient privilege requires, at a minimum, that the plaintiff should have an opportunity to inspect the materials that a health care provider proposes to send in response to a discovery request, in order to determine whether to assert a claim of privilege. I would therefore reverse because the trial court abused its discretion in fashioning a discovery method that poses “a substantial threat that privileged information [will] be disclosed and that such information is not required for a fair and efficient trial.” Cua v. Morrison, 626 N.E.2d at 584.
Finally, I write briefly to address the question of what would constitute an appropriate discovery procedure in the instant case, i.e., one that affords the Andreattas an opportunity to inspect while at the same time assur*1162ing the Hunleys that they will have access to all of Patricia’s medical records that are relevant and discoverable. I must state at the outset that I do not share the majority’s view that the procedure proposed by the Andreattas is fatally burdensome. Be that as it may, a trial court is afforded wide latitude in controlling the discovery process. Canfield v. Sandock, 563 N.E.2d 526. The relevant trial rules and the case law interpreting those rules set out the parameters within which the trial court must operate in controlling discovery. In particular, I note the discussion to that end in Canfield that appears on pages 530-31. Other than identifying the broad boundaries set out in the aforementioned rules and case law, I would decline any invitation to fashion a specific discovery procedure in the instant case.
I note in this regard that the majority has correctly observed that, “[bjecause the scope of discovery is highly dependent on the facts of each case, the fact-sensitive'nature of discovery issues requires a high degree of deference to the decision of the trial court.” Op. at 1159. It is precisely for this reason that T.R. 34(C) and the cases interpreting T.R. 34(C) do not prescribe rigid discovery procedures to be followed by trial courts. Because diverse questions arise in an endless variety of settings, trial courts must be afforded wide latitude in fashioning orders that facilitate permissible discovery, while at the same time protecting privileged matters. When reviewing questions arising under T.R. 34, we examine whether the court accomplished both goals in that particular case. Because the propriety of a given procedure is fact-sensitive, one cannot say whether a procedure upheld on appeal in one case would not later be found erroneous in a different case. Therefore, I cannot agree with the majority’s view that the procedure suggested by the Andreattas, if approved in this ease, “impose[s] such a procedure upon medical providers or our trial courts.” Op. at 1158. Certainly, the majority is correct in stating that “neither Canfield nor Cua [graft] this requirement onto Trial Rule 34(C).” Op. at 1158. I reiterate, however, that cases deciding that a specific discovery procedure was appropriate in a particular case should not be interpreted as approving of that procedure in any other case. In summary, I do not share the majority’s views that the procedure advocated by the Andreattas is “tortuous,” id., or that approving of the procedure in this ease would establish the procedure as preferred, or even acceptable, in other cases.
Because the situations in which trial courts are called upon to guide the discovery process are many and varied, there is no utility in an appellate court crafting an acceptable procedure in this case, or any other case, for that matter. If such were done, there is a danger that trial courts and litigants would construe the resultant procedure as bearing the official sanction of our appellate courts as a preferred procedure to be used across the board. It is enough to say that the trial court should fashion a discovery procedure that both (1) gives the Andreattas a chance to inspect copies of Patricia’s medical records that will be produced in response to the Hunleys’ discovery request in order to determine whether a claim of privilege is appropriate, and (2) assures the Hunleys that they will be able to review all of Patricia’s records that are not subject to a valid claim of privilege.
I would reverse and remand for further proceeding consistent with these views.