Personal injury cases almost always involve questions about how badly people
are injured, and the cause of their injuries. One of the key types of
evidence used to prove or disprove injuries are medical records. While
medical records are usually private, people have to give up their medical
privacy when they make an injury claim.
For that reason, both plaintiff and defense lawyers have always obtained
medical records in
personal injury cases. Those records are used in trials to question physicians and other
health care professionals, to show treatment given for an injury, and
for multiple other purposes.
Not all injured people are comfortable with the fact that their medical
records will be scrutinized by insurance companies and their lawyers.
However, until recently, they could at least be reasonably certain that
their records would only be used in the cases for which they'd been gathered.
That may be changing. In the last few years, many insurance companies have
begun using outside companies to gather medical records of injured people.
The outside companies generally obtain a list of doctors or clinics from
the lawyers, then issue the subpoenas to those providers demanding records.
The outside companies claim they can perform this service more quickly
and efficiently, saving time and costs for their insurance customers.
If all these companies did was the legwork of obtaining records, it might
not be a cause for concern. The problem is that these companies do much
more. Rather than directing the health care providers to send records
to the defense attorneys, they have the records sent directly to them.
The records are then scanned into a massive computer database. That database
belongs to that outside company, and neither injured people nor their
lawyers have any say about how long the records stay there, who has access
to them, or how they are used.
Once the records are in a database, insurance adjusters and defense attorneys
can view them by simply entering a password on a computer. As one such
company, ABI Document Support Services, explains on its website, "[a]ll
of your records are stored electronically in ABI's online database
and are available to download at any time at no additional charge."
Let's consider a real-life scenario: a woman in her 20s injures her
low back in a car accident. She makes a claim for her injuries and files
a lawsuit. The defending insurance company then hires an outside company
to send out subpoenas requesting her medical records.
The company receives medical records from one of her physicians concerning
gynecological treatment. Maybe she had an abortion. Maybe she was sexually
assaulted. All of these highly sensitive and personal records are scanned
into a computer database.
Once the records are scanned, they have made it to an unaccountable black
hole. The woman's own lawyers may not even know the records have been
electronically stored. If they don't know, they're certainly not
in a position to tell a judge about it. Even if they do, the judge may
not feel comfortable trying to stop it. This is a new problem, and without
precedent to rely on, a judge might feel he or she lacks the power to
regulate the actions of a third party who is not officially part of the case.
Of course, the injured client may not realize what is going on either.
If she does, she won't be happy. She'll reasonably be wondering
who will still have access to her most intimate records years after her
case is over.
Now let's suppose our injured woman has the misfortune of being involved
in another accident a few years later. Her records are still out there
in cyberspace. The defending insurance company, which still uses the outside
company, pulls up her records with a few computer keystrokes. She doesn't
know it and her lawyers don't know it, because no subpoenas have to
The implications here are deeply worrisome and creepy. If this practice
continues, the companies will accumulate huge collections of unregulated
private data. That data will have great value to insurance companies fighting
claims, because they will be able to get it without notifying opposing
lawyers or judges. The entire process will occur "off the record."
It's important to note that medical records are not the only documents
which go into these databases. Literally any records obtained by the outside
companies through subpoenas can be scanned. That means a plaintiff's
personnel file from work, family or marital counseling records, or tax
returns could end up in a database too.
Regrettably, many judges and plaintiff's lawyers have not even figured
out what's happening yet. They have accepted the superficial answer
that these companies are just "helping" the defense with the
grunt work of handling paper.
Plaintiff's lawyers owe it to their clients to expose this practice
and ask judges to prohibit the companies from storing these records electronically.
Even if it's okay for insurance companies to use outside companies
for routine paper tasks, it's not okay to use them to build databases
of personal information. This Orwellian practice needs to be stopped.