Paul Sanchez
When filing a personal injury claim, insurance adjusters will often ask for copies of all of your medical records, claiming that they are necessary to verify the injuries you've suffered. However, insurance companies are also looking for information they can use to deny or minimise your claim. They will closely examine your medical history for previous injuries or accidents that could explain your current injuries. While an injury victim has the right to refuse permission for their records to be released, doing so will almost certainly result in the denial of the insurance claim. To avoid this, it is recommended that you consult a personal injury attorney, who can help you navigate requests and ensure that your privacy is protected.
| Characteristics | Values |
|---|---|
| When insurance companies request medical records | When evaluating an injury claim |
| How far back can they request records? | Some companies request records spanning a person's "entire lifetime" |
| Requests for records going back 15 years are not uncommon | |
| What do they use the records for? | To find information that can be used to undermine or weaken a claim |
| What should you do? | Seek the help of a personal injury lawyer to review and object to subpoenas |
| What else can insurance companies do? | Request an independent medical examination (IME) |
| What should you not do? | Never give verbal or written permission for adjusters to obtain your medical records |
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What You'll Learn
Privacy laws and personal medical history
Privacy laws afford individuals a degree of protection when it comes to their personal medical history. In the United States, the Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects an individual's identifiable health information from being disclosed without their consent. This means that an insurance company does not have the right to access your medical information unless you grant them permission. HIPAA also allows individuals to request that their information not be shared with certain entities.
HIPAA does not apply to all entities, and there are certain situations in which protected health information can be disclosed without an individual's authorization. For example, in the case of research, covered entities can disclose protected health information without an individual's authorization, provided they obtain documentation that an alteration or waiver has been approved by an Institutional Review Board or Privacy Board. Additionally, covered entities may disclose protected health information to law enforcement officials for law enforcement purposes under six specified circumstances, including to identify or locate a suspect, in response to a request for information about a victim, and to alert law enforcement of a person's death if criminal activity is suspected.
State laws also play a role in protecting health information privacy. For instance, California has several laws in place, including the Confidentiality of Medical Records Act, the Patient Access to Health Records Act, the Insurance Information and Privacy Protection Act, and the Information Practices Act. In Texas, the Texas Medical Records Privacy Act requires "covered entities" to comply with HIPAA and adds additional protections.
Despite these privacy laws, insurance companies may still attempt to access your medical records, particularly in the case of personal injury lawsuits. They may use your medical history to try to undermine your claim, especially if you have pre-existing injuries. It is important to carefully review any requests for medical records and to seek legal advice if necessary.
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Court orders and subpoenas
A court order is a formal document signed by a judge, typically in complex or contentious cases. It allows interested parties to request specific medical records or even an independent medical examination (IME). The order must be specific and only grants access to the information listed within it.
A subpoena, on the other hand, is not a court order. It is a formal request for records issued by a party involved in a lawsuit, such as a plaintiff, defendant, or attorney. A subpoena for medical records is specifically called a Subpoena Duces Tecum (SDT). While a subpoena does not require patient authorisation, it must comply with the Health Insurance Portability and Accountability Act (HIPAA) and relevant privacy laws.
HIPAA permits physicians and covered entities to disclose patients' medical records in response to a court order, without patient authorisation. However, subpoenas are different, and specific notification requirements must be met. Before responding to a subpoena, reasonable efforts must be made to notify the patient, giving them a chance to object or seek a protective order.
To protect your privacy, it is advisable to consult a personal injury lawyer before signing any insurance forms or providing medical records. They can help review court orders and subpoenas, ensuring compliance with privacy laws and relevance to your case. Additionally, they can assist in objecting to subpoenas and seeking protective orders to safeguard your personal information.
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Independent medical examinations (IME)
An independent medical examination (IME) is a medical evaluation performed on a patient by a medical professional who was not previously involved in the treatment of that patient. IMEs are conducted by doctors, psychologists, and other licensed healthcare professionals. These examinations are generally conducted in the context of a legal or administrative proceeding, at the request of the party opposing the patient's request for benefits. IMEs are commonly held in the context of workers' compensation cases, disability claims, and personal injury litigation.
In the context of insurance, IMEs are often requested by insurance companies or self-insured employers to obtain an independent opinion of the clinical status of the individual. This is particularly relevant in workers' compensation cases, where the insurance company or employer may request that an injured worker submit to reasonable examinations to determine various factors that assist in making compensation decisions. IMEs can also be requested in personal injury lawsuits, where the insurance company may seek to validate the injuries claimed by the plaintiff and calculate the appropriate settlement amount.
It is important to note that IMEs do not establish a typical doctor-patient relationship. While the examiner has a responsibility to assess for possible psychiatric disorders and inquire about suicidal or violent ideation, the independent nature of the examination means that there is no ongoing treatment or therapeutic relationship established.
When an IME is requested, the injured party has certain rights. They are entitled to be notified in advance and in writing of the proposed date, time, and place of the examination, as well as the identity and specialization of the examiner. They also have the right to have their own physician or observer present at the examination, at their own expense. If the injured party unreasonably refuses to attend the IME or obstructs the process, an administrative law judge may bar compensation during the period of refusal.
It is recommended to seek legal advice when dealing with requests for IMEs or medical records from insurance companies. A lawyer can help protect your privacy, ensure that only relevant information is disclosed, and advise on whether it is necessary to comply with the request.
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Pre-existing conditions and previous injuries
When filing a personal injury claim, insurance adjusters will request your medical records to evaluate your claim. They may also ask for an independent medical examination (IME). While your medical records are important for validating your injuries and calculating the settlement amount, insurance companies can use your medical history to undermine your claim, especially if you have pre-existing injuries or conditions. Their goal is to deny your claim or minimise their responsibility.
You should never give insurance adjusters access to your full medical history. Before releasing any records, review them and remove any records that are not directly related to your claim. Only provide the adjuster with records that pertain directly to your accident injuries. You can also consult a personal injury lawyer to review your records more thoroughly and object to any unreasonable requests.
In the case of pre-existing conditions, insurance companies may argue that your injuries are not as severe as described in your claim, or that a pre-existing condition is the main source of your pain. They may also try to claim that the accident only aggravated a pre-existing condition, which could reduce the value of your claim. However, you are entitled to receive compensation for pre-existing conditions if the accident made them worse. This is known as exacerbation or aggravation of pre-existing conditions.
It can be challenging to prove that a pre-existing condition had no impact on your current injuries, and insurance companies may try to claim a connection between the two. It is important to work with an experienced personal injury attorney who can help you build a strong case and negotiate with insurance companies. Medical expert witnesses can also help establish causation by evaluating existing conditions and determining whether they could have contributed to the injuries sustained in the accident.
To strengthen your claim, provide as many medical records as possible, including documentation of your health condition prior to the accident. This can be used to prove how your condition has changed as a result of the accident. Even if you have not seen a doctor for pre-existing injuries, physical therapy records or other treatment records can show how the accident impacted your injuries.
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Working with a lawyer
Firstly, if your insurance company denies your claim, a lawyer can step in at any stage after you submit your claim, guiding you through the internal appeal process and, if necessary, initiating and litigating a lawsuit. An experienced healthcare lawyer can help you navigate the complexities of health insurance claims, ensuring your insurer plays by the rules and preventing you from being burdened with medical bills that your insurer should pay. They can interpret the terms of your health plan and apply them to your specific case, increasing your chances of a successful claim.
Secondly, in the case of personal injury claims, a lawyer can be beneficial when dealing with insurance adjusters and requests for medical records. Insurance companies may attempt to access your full medical history, using it to undermine your claim, especially if you have pre-existing injuries or conditions. A personal injury lawyer can help you protect your privacy and ensure only relevant records pertaining to your claim are released. They can review court orders and object to subpoenas, seeking protective orders to safeguard your personal information.
Additionally, it is generally advisable to consult a lawyer before speaking extensively with insurance adjusters. Adjusters often contact victims within 24 hours of an accident, when they are most vulnerable, and may employ aggressive tactics to reduce settlement amounts. A lawyer can help you avoid being taken advantage of, ensuring you receive a fair settlement that covers your medical expenses and injury-related costs.
When working with a lawyer, it is essential to find one specializing in the relevant area of law, such as health insurance claims or personal injury. They should be able to guide you through the specific legal processes and protect your interests when dealing with insurance companies.
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Frequently asked questions
When you file a claim for a medical injury, the insurance company will likely request your medical records to confirm the injuries you've claimed.
You should be cautious about releasing your medical records, as insurance companies can use your medical history to undermine your claim. It is recommended to consult a personal injury lawyer, who can help you navigate requests and protect your privacy.
No, you should only provide records that are directly related to your claim. You should carefully review requests and specify that only records pertaining to the injury in question should be shared.
Insurance companies may request records from before the accident, but they cannot access your medical records without your permission. Under HIPAA, they must obtain your written consent to access your medical records.
