June 2012 Archives

I was in a car wreck and the insurance company wants me to sign a medical release, what do I do?

If you have been injured in a car wreck, you have probably received forms from an insurance adjustor giving that at-fault driver's insurance company access to your medical records. It happens in nearly every claim. Should you sign them? Probably not; at least not until you talk to an experienced injury attorney who handles car wreck claims.

Your medical records are private and protected from disclosure by federal HIPAA laws. But, when you get hurt and seek money from an insurance company, you put your entire medical history up for review. That is okay, as long as it is controlled. Many insurance companies will send medical releases that allow them to talk to your doctor. That is called ex-parte communication and it is not allowed, unless you agree to it.

There is no testimonial privilege for doctor-patient communications in Tennessee. Givens v. Mullikin ex rel. McElwaney, 75 S.W.3d 383, 407-08 (Tenn. 2002). There is, however, an implied covenant of confidentiality between a physician and a patient arising out of the original contract of treatment for payment. Id. This implied covenant specifically precludes informal discussions with a law firm employed to defend the patient's claim: "[A] physician breaches his or her implied covenant of confidentiality by divulging medical information, without the patient's consent, through informal conversations with others." Id. However, this covenant of confidentiality can be waived by the patient by signing the form. So don't do it until you talk to an attorney.

It's the same for work injuries, you get hurt and the forms arrive. But the workers' compensation laws in Tennessee have a provision that requires the injured worker to sign a form called a C-31 medical waiver and consent form. You can find a copy of that form here, click to download the form C-31. I have seen some insurance companies sneak terms into a C-31 that allows the insurance company to talk to the doctor. This type of form should not be signed.

In almost every car wreck or motorcycle accident claim, or really any type of claim for serious injuries, I control the flow of information about medical records. We provide the insurance company with all of the records. We sometimes give them an agreed protective order allowing them access to the records, at their expense, but the order does not give the insurance company permission to speak privately with your doctor.

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