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Protecting Health Care Privacy

When Does the Investigation of the Injured's Health Background Go Too Far?

When a patient suffers bodily injuries as a result of another's negligence, medical evidence is both necessary and relevant. "If a patient breaks her leg in a crash, we are required to prove the existence of the broken leg as a component of our client's damages," said Attorney James Mertes, Managing Partner of the Law Firm of Mertes & Mertes. "As a matter of law, subject to privacy limitations, defense attorneys and insurance companies are entitled to review the medical records that relate directly to the claims," Mertes added.

"Certainly when this occurs, there is an intrusion upon medical privacy," Mertes explained. "But at least in this example, it is a limited, reasonable and necessary intrusion," he said. "In other words, if we are making a claim for damages from a broken leg, we must disclose the medical records and bills that relate directly to the broken leg," Mertes added. "That's the law, and it's entirely reasonable" he said.

But when does the Defendant's investigation of an injured plaintiff's health history go too far? "That's a battle we fight every day," said Derek Bushman, personal injury attorney in the Law Firm of Mertes & Mertes.

"Courts must strike a balance between the defendant's efforts to investigate a plaintiff's health history and the plaintiff's efforts to protect her medical privacy from unreasonable intrusions," Bushman said. "A careful and thoughtful approach can resolve this conflict, but not all defendants are as careful and thoughtful as they should be," Mertes added.

"If a 60-year-old plaintiff suffers a broken arm in a car crash, the Defendant is simply not entitled to know about her diaper rash in infancy," Mertes quipped.

"Believe it or not, we deal with defendants all the time who claim that if a person suffers the misfortune of being injured through the negligence of another, the defense is entitled to review any and all medical records of any kind whatsoever from the moment of that plaintiff's birth," Bushman said.

"That is just absurd," said Mertes. "We have had cases of patients who suffered injuries when they were well into their 70s," Mertes said. "And Defendants have attempted to obtain medical records of illnesses they had when they were teenagers," Mertes added.

"We fight the battles over our clients' medical privacy vigorously," Mertes said. "If necessary, we conduct contested court hearings in defense of our clients' health care privacy," Mertes added.

"Subjecting a plaintiff to unwarranted intrusions into her medical privacy could have a chilling effect on her willingness to get medical care for unrelated conditions," Mertes explained. "There are very serious public policy and health care quality issues at stake in these fights," Mertes said.

"Frankly, I sometimes wonder about the true motives of those defendants and insurance companies who pursue far-reaching invasions of a plaintiffs' medical privacy." Mertes said. "It is as if they are saying 'if you sue us in your 50s, we will subject you to the embarrassment of investigating whether you had an STD in your teens,'" Mertes said. "That approach has no basis in law," he said. "It is just shameful," he added.

"When these issues arise, we first attempt to resolve them through discussions with counsel," Mertes explained. "When we cannot resolve the issues, we conduct court hearings on the scope of permissible medical discovery," he added. "Thankfully, our courts understand the many important reasons underlying the protection of medical privacy," Mertes explained. "When defendants and their insurance companies are unwilling to strike a measured approach, courts have a way of imposing one upon them," Mertes said.

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