Q Why do I have to let the defense lawyer see my medical records?
Whenever you file a personal injury lawsuit, you give up a large part of your right to privacy.
Once a lawsuit has been filed, the first thing the insurance company's lawyer will do is ask for all of your medical records back to the previous ten years before the collision occurred.
Sometimes, we object to the ten-year span of medical records and provide instead five years of medical records. However, if the defense lawyer decides to make an issue over your medical records, most judges this day and age will let the insurance company lawyer have all of your records back the full ten years.
The stated reason for this invasion of your privacy is that if you are alleging personal injuries caused by the negligence of the defendant, the defendant’s insurance company is entitled to defend your claim by showing that you had pre-existing conditions or other medical issues before this wreck which somehow has a bearing on the damage the defendant has done to you by his negligence. This is perhaps a weak argument but the courts almost always buy it.
It may be possible to keep the defendant insurance company from seeing some types of your medical records. For instance, if a woman breaks her leg in a motor vehicle collision, courts sometimes will not force us to produce copies of the woman's gynecological records.
Defense lawyers use any and everything they can to try to discredit the plaintiff. This includes any record of mental or emotional problems in the past, criminal records, or anything else that the defendant will think that a jury might punish the injured plaintiff for. It doesn’t have to be logical and it doesn’t have to make any sense at all.
The way many of these cases are defended by the insurance company lawyers is to throw everything they can against the wall just to see if something will stick. After all, the defendant and his insurance company do not have to prove anything. The burden of proof is on the plaintiff.
Usually the defense tactic is to not produce any evidence of its own but to try to poke holes in the plaintiff’s evidence. One of the major weapons for doing this is past medical records.
Even if the claim does not result in litigation, the injured person’s privacy however will be invaded. Insurance companies will not pay a claim without having seen the injured parties medical records. Therefore, if a personal injury claimant wants to settle their case, they must voluntarily agree to allow the insurance company to see the records. Otherwise, there will be no settlement.