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Protecting the Privacy of an Injured Person

The question my clients ask me most is “Why does the insurance company get to look at my medical records from 15 years ago?” The answers I gave were always unsatisfactory to me, and rested largely with the idea that discovery is wide open and the insurance companies get to dig around in the medical records to see if there is another explanation for the injury.

 

The question my clients ask me most is “Why does the insurance company get to look at my medical records from 15 years ago?” The answers I gave were always unsatisfactory to me, and rested largely with the idea that discovery is wide open and the insurance companies get to dig around in the medical records to see if there is another explanation for the injury.

The insurance defense lawyers abuse this power. They will ask questions about childhood illnesses in a car accident case involving a broken bone. They will ask about miscarriages, STDs, and every other embarrassing medical condition they find. There is no legitimate purpose for these questions. The goal is to intimidate the injured person and scare them away from a trial.

There is a bill pending in the Wisconsin legislature designed to restore the balance between a person’s right to privacy and the insurance company’s right to defend itself. The law, if passed, would prevent the insurance companies from getting an injured person’s medical records that are unrelated to the claimed injury. The injured person would be required to provide treatment records from the date of the accident forward, but would not have to provide pre-injury records. The bill provides that if the insurance company can show clear and convincing evidence that the injury pre-existed the accident, they would be allowed to look at older records.

The bill also addresses some of the abuses in the defense medical examination rules. Currently, the insurance company’s doctors could ask anything of the injured person, including questions about liability. The insurance company would then have a doctor testifying about how an accident happened. The new law would prohibit that practice. The new law would also prohibit the insurance company from making an injured person drive more than 100 miles to attend a defense medical exam. Finally, the injured person would be allowed to record the examination to prevent the insurance company doctor from changing the facts.

The bill is currently in committee and facing significant opposition from the insurance industry. Please register your support for this important law.

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