W.Va. judges can force insurers to destroy records

By Steve Korris | Apr 19, 2011


CHARLESTON, W.Va. (Legal Newsline) - Judges can require insurers to destroy or return medical records that crash victims provide in lawsuits, the West Virginia Supreme Court of Appeals has ruled.

Three Justices upheld Harrison Circuit Judge Thomas Bedell of Harrison County, who ruled that State Farm Mutual couldn't keep records of Carla Blank and late husband Lynn Blank.

"Because Mrs. Blank established good cause through particular and specific facts of her expectation of privacy in her, and her husband's, medical records, the circuit court's decision to grant her a second protective order was proper," Justice Robin Davis wrote in the April 1 opinion.

The Justices had reversed Bedell's first order because he didn't address good cause.

State Farm mistook the reach of that decision, Davis wrote.

"We did not conclude, as State Farm urges herein, that Mrs. Blank had failed to establish good cause for the issuance of any and all protective orders," she wrote.

Davis closed a door on plaintiff lawyers who might demand exclusive possession of defense reports that summarize medical records.

"A medical protective order is not intended to be a vehicle for improper intrusion into a party's documents that have been prepared in anticipation of or in preparation for litigation or in the course of representing a client," she wrote.

Chief Justice Margaret Workman and Justice Thomas McHugh concurred.

Dissenting Justices Menis Ketchum and Brent Benjamin predicted more lawsuits and higher insurance costs.

"Even if we presume there is some statutory or regulatory authority creating a right to medical record confidentiality, I believe a plaintiff waives his right by filing a lawsuit in a public forum and delivering the records to opposing parties," Ketchum wrote.

"Once confidential information is made public, it cannot be hidden or concealed again," he wrote.

Carla Blank suffered injuries and Lynn Blank died in 2008, in a head on collision on W.Va. 20 in Buckhannon.

The crash killed the other driver, Jeremy Thomas.

Carla Blank sued his mother, Lana Luby, as representative of his estate.

State Farm asked Blank for medical records, and Blank asked Bedell for protection.

He granted an order limiting State Farm's ability to divulge the contents of the records to third parties and outlining the manner for returning or destroying them.

State Farm appealed, and the Justices reversed Bedell.

He signed a similar order last October, adding a prohibition against sharing information with the National Insurance Crime Bureau without Blank's consent.

He supplied the missing lines on good cause, writing that medical records are protected by privilege between physician and patient.

"Further, medical records have the potential to contain facts that are embarrassing to the patient, and the law recognizes that the dissemination of medical records must be done with the patient's consent," he wrote.

State Farm appealed again, arguing the order would hinder its defense in future cases in federal courts or cases with lengthy statutes of limitation.

The second appeal failed.

Davis wrote that although protective orders usually require return or destruction in 30, 60, or 90 days, unique circumstances of the case necessitated five years of protection.

"Because, then, the terms of the second protective order have been specifically tailored to address the concerns raised by State Farm in its prior petition to this Court, we are not inclined to relieve it from the circuit court's order affording it the relief it earlier sought," she wrote.

Kethcum wrote that the majority created far reaching negative policy implications.

"Obviously, it will be expensive for insurance companies to catalogue the medical records collected in every lawsuit, and expensive to later make sure that every archived insurance file is scraped clean of any medical records or summaries," he wrote. "More importantly, the insurance industry should be allowed to hold down its costs by maintaining data banks of medical records to identify malingerers and cheaters and double dippers.

"Adjusters settling personal injury claims prior to a lawsuit should have access to the claimant's complete prior medical history. ... I can find no cases placing a duty upon adverse parties to take care of or destroy an adversary's medical records.

"I therefore find it disconcerting that the majority opinion has, essentially, pulled this new duty out of thin air."

David Romano and Tyler Slavey, of Romano Law Office in Clarksburg, represented Blank.

Kay Fuller and Michael Stevens, of Martin and Seibert in Martinsburg, represented State Farm.

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