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The Past, Present, and Future of Protecting Privates in Personal Injury Cases

One of a personal injury attorney’s most important tasks is to protect clients. Two major parts of that involve ensuring clients have the best case possible under the law and protecting their privacy. Our last blog was about how injury attorneys can fortify a case with information from vehicle event data recorders. We linked to the New York law about the disclosure of the information recorded by event data records, such as speed, location, and brake performance. That type of activity recording raises privacy concerns, but that comes with the injury case territory.

Another privacy issue arises from a similar recording device, the license plate recorder. License plate recorders are cameras that may be mounted on things like police cars, tow trucks, traffic signs, and bridges and they have the potential to track each and every location an individual has driven. The ACLU has called for more legal restriction on the information obtained by these devices based on rights contained in the Fourth Amendment, in part because private companies are disclosing information with little to no oversight. Some states have already passed laws on the retention of the information collected from these cameras.

New recording devices raise new issues; as technology evolves, so does the law. But personal injury attorneys have been dealing with countless privacy issues since the start. Most commonly we deal with the Health Insurance Portability and Accountability Act, also known as HIPAA law. The law says injury attorneys have to turn over certain medical records and authorizations releasing medical records directly from healthcare providers to the attorneys whose job is to defend the case. A proper HIPAA authorization is always required to release medical records, but generally speaking only records related to the body parts injured in the accident need to be turned over. In Gumbs v. Flushing Town Center III, L.P., 1114 A.D.3d 573, 981 N.Y.S.2d 394 (1st Dept. 2014), the Appellate Division affirmed the decision of the Honorable Laura Douglas to protect the plaintiff from providing authorizations to the defendants relating to some of his own medical records. His case was related to injuries sustained to his shoulder and ankle. The defendants were seeking records from his cardiologist and primary care physician. The defendants claimed the records were related to the plaintiff’s ability to work and his life expectancy.

New HIPAA-related issues were created by electronic filing. Although putting bulky legal files into electronic form has its benefits, it also allows anyone who is capable of setting up an account to have easy access to a complete stranger’s medical records. The state court rules and the federal court rules both require redaction of the month and date of an individual’s date of birth and all but four digits of a social security number, among other things.

Another privacy issue, though one which has been litigated in relative detail at this stage, is disclosure of family members’ records in toxic tort cases, such as those involving lead paint. Some common demands made by defense counsel when faced with claims of an infant who was exposed to lead paint in their apartment are for the mother’s medical, pharmaceutical, and academic records. Another common demand is for the medical records of the siblings. In Vazquez v. New York City Hous. Auth., 79 A.D.3d 623, 914 N.Y.S.2d 127 (1st Dept. 2010), a young individual was exposed to a lead paint condition which exacerbated his pervasive developmental disorder. The defendant wanted to see the medical and academic records of the siblings, who were not involved in the lawsuit. The courts found that there was nothing more than speculation to support the notion that the siblings’ mental condition had any bearing on the plaintiff’s condition and denied the request.

The common thread among these issues is that privacy, confidentiality, and privilege are still being protected while technology is helping us do what we need to do in a different way. It will be interesting to see how, as technology evolves, the law draws a line to balance competing interests.

Resources:

The Legal Examiner, Is Privacy Jeopardized by LPRs? by Steven J. Klearman, 01.08.15

ACLU, You Are Being Tracked: How License Plate Readers Are Being Used To Record Americans’ Movements