We see it over and over again: someone is hurt in a car wreck, and an adverse insurance adjuster insists on getting a release for the injured person’s medical records or they will “close” the claim. The adverse insurance company, in fact, has no legal right in Oregon to a release for medical records, and “closing” the claim means nothing. The injured person still has the right to bring a claim within the time provided by law, regardless of whether the adverse insurer’s claim file is “open.”
Nonetheless, few people know their legal rights. Fearing that they will never be allowed to bring a claim, they frequently sign the medical release. The adverse insurance company then vacuums up their medical records, not just for the injuries from the collision, but for all kinds of unrelated matters. Once the insurance company has those records, it is under no obligation to keep them private, or to destroy them.
Don’t Throw Away Your Privacy
Imagine a case where a person suffers a broken arm in a collision. Fearing that their case will be “closed,” they sign an authorization to allow the adverse insurance company to obtain their medical records. But instead of limiting those to the broken arm records, the insurance company may find records of a sexually transmitted disease when the person was a teenager, or unrelated mental health records from years ago, or notes about an unwanted pregnancy, or any of a multitude of other medical records that are otherwise private and protected by law.
Not only does this give the adverse insurance company an unfair bargaining advantage, those records may become part of a database that other insurance companies can use in the future against the person. One of the forms we saw recently said, “I understand any disclosure of information carries with it the potential for an unauthorized re-disclosure and may not be protected by federal confidentiality rules.” In other words, once your information is out, it could end up anywhere.
What About the Law?
You may be wondering why there is no legal protection against the collection of such sensitive information, especially if you’ve ever sat in a doctor’s office and signed the seemingly endless stream of forms related to the Health Insurance Portability and Accountability Act (HIPAA), which aims to protect patient privacy. It turns out, there’s a loophole big enough to drive an 18-wheeler through: HIPAA only prohibits unauthorized access to medical records. The insurance company wants you to sign a form authorizing them to access all your medical records, usually going back years.
No Oregon law gives an adverse insurance company or party the right to require an injured person to give a release or an authorization for disclosure of their private medical records. We never have our clients sign such authorizations, because it is against their interests to do so.
What About Your Own Auto Insurance Company?
Things are more complicated when it is the injured person’s own auto insurance company that is asking for the release of medical records. In Oregon, every conventional auto insurance policy includes some “personal injury protection” (known as “PIP”) coverage, that pays up to a certain amount of medical bills and sometimes some other expenses. The injured person’s auto insurer has a legitimate interest in making sure that the bills it is asked to pay under the PIP coverage are in fact from the collision.
But the authorization forms used by the injured person’s own auto insurance company are typically just as bad as those from the adverse insurance company. These, too, typically allow the insurance company to scoop up all kinds of medical records, whether or not they are related to the crash. And they often have the same kind of language about how once there is disclosure, there may be re-disclosure. In other words, your records may be used by others in the future for other purposes.
While your auto insurance company needs information about your wreck-related injuries to pay under your PIP coverage, it does not need to have the unrelated medical information. If they get their hands on records unrelated to your wreck injuries, they can mine this information for anything to use against your claim.
How Can Auto Policy Holders Protect Their Health Care Information and Rights?
Policyholders do have some rights when it comes to auto insurance companies and access to medical information, but you may need to retain a personal injury attorney to make sure your rights are respected. This is especially critical in the case of severe injuries that are potentially going to require lengthy, expensive treatment, and affect your future ability to work.
Some things an experienced personal injury attorney may do for you, regardless of the extent of injuries:
- Review your policy and all forms you are asked to sign before you sign them
- Advise you that under no circumstances should you sign any authorization forms presented to you from the other person’s insurance company
- Review all requests for specific records for their relevancy
- Ensure only injury-related records are disclosed
- Request copies of all medical records the insurance company receives
- Review any medical records subpoenas and, if necessary, question the need for the records before a judge
Contact a Qualified Attorney After Any Vehicle Wreck with Serious Injuries
Most personal injury attorneys don’t charge for their initial consultations, and represent survivors on a contingency-fee basis, getting paid a percentage of any recovery.
With so much at stake in a serious injury incident, it just makes sense to get professional advice and help. This begins with what medical information an insurance company is entitled to and what it’s not. If you’ve got questions about an Oregon case, we would be happy to try to answer them. Policyholders deserve to understand their rights, and to have a professional on their side.