State Farm and Nationwide fail to convince WV Supreme Court to let them retain – and share – medical records obtained under protective orders

Here’s another recent and interesting privacy case in West Virginia discussed by Bordas & Bordas, who have just been added to my bookmarks:

In September, they wrote:

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: ”

[…]

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.

Yesterday, they wrote:

In its November 15 opinion, the West Virginal Supreme Court says emphatically that trial courts of West Virginia have the power to regulate all discovery, including the protection of private medical records:

As part of a trial court’s exclusive authority to manage discovery in its tribunal, a court also may enter protective orders to safeguard the confidentiality of materials disclosed in discovery and to regulate the manner in which such information may be used.

 

You can read the court’s opinion. Again, Chief Justice Ketchum dissented, but proposed adoption of a medical privacy rule for the state’s courts that would obviate the need for case-by-case consideration.  In his dissent, he cited the South Dakota rule:

The production of a record of a health care provider, whether in litigation or in contemplation of litigation, does not waive any privilege which exists with respect to the record, other than for the use in which it is produced. Any person or entity receiving such a record may not reproduce, distribute, or use it for any purpose other than for which it is produced.

This rule does not bar any person or entity from complying with any court order, or state or federal law or regulation authorizing disclosure of information that otherwise would be protected by this rule.

Sounds good to me, and I wish more states adopted this type of rule.

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