Personal Injury

Can I Keep My Medical Information Private in a Personal Injury Case?

By Carol DiBari, Attorney
Medical records play a key role in determining the value of a personal injury claim, so keeping your records private will undermine your case and leave you with no medical documentation to substantiate your claims.

No matter what type of personal injury claim you're filing, you will likely be asked to provide documentation of your injuries, and provide the insurance company (and/or or defense counsel) with an authorization for the release of your medical records.

These medical records are examined in order to assess the details and extent of your injury -- and all treatment you've received -- before a personal injury settlement is offered. But what does this all mean for your privacy? Do you have to release your medical records? Can you keep your medical information private and still be successful in your personal injury case? Read on for the answers.

Medical Privacy and HIPAA

Before you worry about what will happen to your personal injury claim, you first have to understand your rights when it comes to your medical privacy.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that ensures your privacy by protecting against the unauthorized release or disclosure of your medical information. Medical providers cannot release your medical information without your consent, and HIPAA imposes both criminal and civil penalties on any provider who does. HIPAA also limits who can access your private medical information, while ensuring that you can obtain copies of your own medical records.

If you file a personal injury claim, you can expect that you, your insurer and opposing counsel will want copies of your medical records. While HIPAA protects your medical privacy, most insurance companies will require you to sign a release, which results in the waiver of those protections. You can, however, restrict the release by limiting it to medical information related only to the injuries in your personal injury claim. Once you make a claim for injuries, you effectively waive the right to privacy to all medical records that may be relevant to the injury. You should, however, never sign a release that authorizes the release of your entire medical history.

Medical Authorizations and Access to Records

The insurance company or defense counsel will likely request a medical authorization in order to fully assess your claim. Medical authorizations permit another party to access and obtain copies of your medical records and information.

The request for medical authorizations must be reasonable and be restricted to information and records related to your alleged injury and the treatment you received following the injury. Authorizations for all medical providers are usually requested, including all:

  • physicians
  • specialists
  • pharmacies
  • physical therapists
  • chiropractors, and
  • diagnostic testing facilities.

Any medical information or records related to any injury you're claiming can typically be obtained with a medical authorization.

Insurance companies and opposing counsel will sometimes use a medical authorization to try to get information not related to the accident or alleged injury, as part of a strategy to dig up something in your medical history to undermine your claim. This is why you (and your personal injury attorney) should make sure that any medical authorization you provide is narrowly drawn and restricted to information and records related to your current claim.

Independent Medical Examinations

When considering your medical privacy in a personal injury case, you should also be aware of the "independent medical examination" or "IME," which is an exam conducted by an independent doctor chosen by the defendant or his insurance company.

The IME is a mechanism by which the defendant can verify that:

  • you have indeed suffered an injury
  • the injury is as serious as alleged, and
  • the injury was caused by the accident or incident that gave rise to your claim.
Note that you are not always required to submit to an IME, but your insurance policy may mandate it, or you may be ordered to attend the IME by the court.

During the IME, a qualified physician will examine you, and will ask questions about the accident that led to your injuries, as well as the specifics of your injuries and treatment.

After the IME has been completed, the doctor will prepare an IME report and send it to the defendant’s insurance company. The report will be shared with you as part of the normal pre-trial discovery process.

The doctor’s report will detail his/her examination of you and include descriptions of your medical history, the medical records reviewed, the conversation you had, and all his/her observations, findings and opinions. More often than not, the IME doctor’s conclusions will fall in favor of the defendant. Learn more about the Independent Medical Examination in a Personal Injury Case.

An experienced personal injury attorney can help protect your privacy and personal information and allay any concerns you have about releasing any more medical information than is necessary. Learn more about Why It's a Good Idea to Hire a Personal Injury Lawyer.

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