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"By JAY STONEKING<br /><br />In September, I wrote about two privacy cases that were scheduled to be heard by the West Virginia Supreme Court. In the first one a health care provider was arguing that it should not be required to pay damages for illegally accessing and disseminating the plaintiff's private medical records. <br /><br />In the second one, West Virginia's largest insurer, State Farm, was arguing that insurers should be free to share private medical data with national databases - and, even more disturbingly, that trial courts in West Virginia lacked any power to stop them. I am pleased to announce that in both cases the West Virginia Supreme Court ruled in a way that protected privacy rights.<br /><br />You may remember that in <em>R. K. vs. St. Mary's Medical Center, Inc., 2012 WL 5834577,</em> a hospital employee illegally accessed the plaintiff's psychiatric records and then forwarded them to the plaintiff's estranged wife and her divorce attorney. The plaintiff sued the hospital, claiming that state law provided a remedy for this scandalous behavior. The hospital asked the trial court to dismiss the case, arguing that HIPAA preempted any and all state laws relating to medical rights privacy. Because HIPAA itself didn't provide a remedy the hospital was, in reality, asking for a free pass.<br /><br />Thankfully, the West Virginia Supreme Court refused to accept the hospital's bizarre argument. Even though HIPAA is meant to protect privacy rights, the hospital was twisting it to mean that HIPAA violations would go unpunished. This interpretation was rejected out of hand:<br /><br />\"[S]tate common law claims for the wrongful disclosure of medical or personal health information are not inconsistent with HIPAA. Rather, ...such state law claims complement HIPAA by enhancing the penalties for its violation and thereby encouraging HIPAA compliance. Accordingly, we now hold that common law tort claims based upon the wrongful disclosure of medical or personal health information are not preempted by the Health Insurance Portability and Accountability Act of 1996.\"<br /><br />The database case was <em>State ex rel. State Farm Mut. Aut. Insurance Company vs. Marx, 2012 WL 5834584</em>. The plaintiff was injured in a car wreck and made a claim against the negligent driver. As a part of the litigation process, the plaintiff produced portions of his medical records. The negligent driver's insurer, State Farm, was known to share medical records with national databases. Therefore, the plaintiff asked the trial court for a protective order. State Farm fought this issue tooth and nail for over two years. Even though the West Virginia Supreme Court decided the issue in 2011, saying that medical records and data could be protected from dissemination, State Farm refused to give up and appealed again--for a third time!<br /><br />In its Nov. 15 opinion, the West Virginia Supreme Court says emphatically that trial courts of West Virginia have the power to regulate all discovery, including the protection of private medical records:<br /><br />As part of a trial court's exclusive authority to manage discovery in its tribunal, a court also may enter protective orders to safeguard the confidentiality of materials disclosed in discovery and to regulate the manner in which such information may be used.<br /><br />Justice Menis Ketchum wrote a separate opinion urging the adoption of a new court rule covering the subject of medical privacy. This rule would make it clear that production of medical records as part of the litigation process does not waive any privilege or confidentiality, and that reproducing or disseminating medical records would be expressly prohibited.<br /><br />This case was certainly a \"win\" for privacy rights. However, as Justice Ketchum noted, having these issues resolved in individual cases is an unnecessary strain on judicial resources. It would be better to address this issue through the rulemaking process so that protection can be provided on a state wide basis and without having to make a formal request for a court order. I, for one, join Justice Ketchum's call for a new court rule so that the privacy rights of litigants can be fully protected.<br /><br /><em>Jay Stoneking is an attorney at Bordas &amp; Bordas in Wheeling.</em>"^^<http://www.w3.org/2001/XMLSchema#string>
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