Insurance Companies Make a Grab for Your Private Medical Records and Want to Publish Them to a National Database

WHEELING, WV, February 26, 2013

It goes without saying that medical records are private in nature and are entitled to legal protection. In fact, it's hard to imagine anything more sensitive and personal than the things we tell our healthcare professionals. We provide them with intimate details of our lives--and, of course, we do so with the expectation that everything we say will be held in strict confidence.

The law recognizes this confidential relationship. In West Virginia, there are protections in place that prevent healthcare professionals from releasing medical records without the patient having notice and an opportunity to be heard. In some instances, healthcare professionals can be sued for improperly releasing records.

But what happens when these same records come into the hands of a third party? Are they still protected? The answer in most circumstances is that medical records lose their protected status.

You may think this isn't important because it doesn't happen very often. But you're wrong. Insurance companies routinely gather medical records in the course of taking applications and processing claims. What do you think they do with this private healthcare information? The answer may shock you. Most insurers share this information with a huge nationwide database. That's right. Without your knowledge and consent, your insurance company is probably sending your medical information to a central hub where it can be accessed by literally hundreds of other companies.

In a case decided a year ago, the West Virginia Supreme Court took a step in the right direction to protect private medical information held by insurers. In State ex rel. State Farm Mutual Automobile Insurance Company vs. Bedell, 228 W.Va. 252, 719 S.E.2d 722 (2011), a car wreck resulted in multiple injuries and deaths. The plaintiff, Mrs. Blank, sued the negligent driver. During the course of litigation, the driver asked Mrs. Blank to produce medical records. The trial court entered an order prohibiting the driver's insurer, State Farm, from disseminating the records and requiring the records to be returned once litigation was concluded. State Farm objected.

In its published opinion, the West Virginia Supreme Court recognized that Mrs. Blank had a privacy interest in the medical records that could be protected--even after they came into the hands of a third party: "A person's medical profile is an area of privacy infinitely more intimate, more personal in quality and nature than many areas already judicially recognized and protected."

State Farm pulled all of the stops, arguing that it was too burdensome to comply with the order and that it was, in effect, being compelled to destroy its own business records. Those arguments were soundly rejected. Therefore, courts in West Virginia now have the power to issue orders protecting the privacy of medical records acquired by insurers in the course of litigation.

This is good news for West Virginians. Just because a medical record makes its way into an insurer's file is no reason to send it to a database where private information will become very, very public.

State Farm hasn't given up. Even though these same issues have already been litigated twice, State Farm, joined by another insurance giant, Nationwide, is now attacking protective orders for a third time. The case will be heard by the West Virginia Supreme Court in October, 2012. State Farm makes many of the exact same arguments. Essentially, State Farm insists that it can do whatever it pleases with the medical information it possess. Make no mistake. This is a full court press by State Farm and its industry allies. Obviously, the Supreme Court should send State Farm a clear message. Private medical records are just that-private!

But there's still more work to do. Bedell only deals with records obtained through litigation. There are many other ways that insurers can, and do, obtain medical records. These records, unfortunately, cannot be protected by the kind of order approved of in Bedell. Therefore, it's up to our Legislature to act. We urge the Legislature to give medical records full protection by prohibiting insurers from disseminating medical records or information to any third party, including any nationwide database.

To learn more about our Wheeling insurance bad faith law firm, visit our website at www.bordaslaw.com.