New Mexico Injury Attorney Blog

When facing the uncertainties of a personal injury accident, it is important to know that your personal health information is protected by federal law. As a result, your medical care providers and insurers are required to safeguard your personal health information. Thus, anyone requesting your personal medical information must comply with both the Privacy Rule and the Security Rule found in the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The HIPAA was created to increase the efficiencies of the health care system, by creating national standards which protect "individually identifiable health information". This information includes your current and/or prior medical history, as well as anything that would specifically identify you, such as a social security number or birth date.

Within HIPAA is the Privacy Rule, which gives you rights over your personal health information in any form, whether verbal, written or electronic. Protected information includes the written information that is in your physical medical chart, as well as electronic data kept on your health care provider's computer system. Protected information also includes conversations you've had with these providers and your personal financial information used for billing purposes. It even includes information about you kept by health insurance companies, including Medicare and Medicaid.

The Privacy Rule provides a method for disclosing this protected information to others, but does set limitations. In the case of a personal injury claim, there may be insurance companies, governmental agencies, law firms, medical experts and others enlisted to defend against your claims. Your health care providers can only release your personal medical information to these entities after receiving your signed authorization, which specifies to whom the information will be sent along with the scope and date ranges for the medical records to be released.

Your personal medical information can be released by court order, but the information requested must be specifically identified, and only this information will be released. Subpoenas for your personal medical information are not the same as a court order unless issued by and upon the order of the Court. Subpoenas are typically issued directly by lawyers, who must comply with the Privacy Rule as well. They must either notify you of the request, so that you have an opportunity to object, or they must seek a "qualified protective order" through the court. A subpoena alone without the order of the court is not sufficient for the defense to obtain your medical records.

Though HIPAA laws will protect against unauthorized release of medical information to the defense, the discovery rules are fairly liberal. The defense will typically be able to obtain almost all medical records for seven to ten years prior to any accident or injury claimed in a personal injury lawsuit. Any records beyond that may be protected. And HIPAA will most definitely prevent the release of records without proper legal releases or court orders.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The recent New Mexico Supreme Court case of Durham v. Guest addressed the claim of malicious abuse of process. The case is remarkable for a number of reasons. In particular, the court ruled that arbitration proceedings constitute judicial processes though it is unnecessary to initiate judicial proceedings for the claim of malicious abuse of process.

The plaintiffs, Jamie and Travis Durham, sued attorney Suzanne Guest for malicious abuse of process for the illegitimate use of subpoenas in an Underinsured/Uninsured Motorist arbitration proceeding. Guest represented the Durham's insurance company, Allstate. The Durhams alleged that the subpoenas were issued in an effort to invade their privacy, ruin their reputations, cause the loss of employment and to inflict upon them emotional distress. They alleged this malicious behavior was the result of the Durham's failure to accept Allstate's offer of settlement. The Durhams also sued Allstate for bad faith insurance practices but the court's ruling addressed only the malicious abuse of process claims.

Defendant Guest answered that malicious abuse of process requires the initiation of judicial proceedings and arbitration did not constitute judicial proceedings. The district court agreed dismissing the Durhams' claims. The Supreme Court disagreed overruling both the district court and the appellate court on both these counts stating that arbitration is indeed a judicial process but that no judicial process is required for the claim of malicious abuse of process.

The court in so ruling restated the essential elements of malicious abuse of process as follows: "(1) the initiation of judicial proceedings against the plaintiff by the defendant; (2) an act by the defendant in the use of process other than such as would be proper in the regular prosecution of the claim; (3) a primary motive by the defendant in misusing the process to accomplish an illegitimate end; and (4) damages."

The case is important for a number of reasons. First, it seems to open up possible claims against insurance companies both in litigation and arbitration for the illegitimate use of subpoenas and perhaps other discovery. Secondly, malicious abuse of process may occur in arbitration proceedings which are commonly used in consumer rights cases such as debt collections and credit card disputes where arbitration is dictated by contract. This should give consumers a pretty good weapon to protect themselves against abuse during these proceedings. Finally, the elements reach a broad spectrum of possible cases. One that comes immediately to mind is a topic that we have been addressing in the past weeks which is the filing of false domestic violence charges.

Durham v. Guest seems to be perfectly situated to address cases of baseless and malicious filing of domestic violence actions. Though prosecutors are generally protected by judicial immunity and spouses enjoy limited protection against suits by their spouses, there is no such protection for boyfriends, girlfriends, ex spouses, or other non-spousal relations that file false claims of domestic violence, whether the false charges are brought civilly or criminally.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Often personal injury claims in New Mexico present the possibility of bringing a loss of consortium claim. This is particularly so in cases of serious personal injury. A loss of consortium claim is brought on behalf of spouse or child of the injured person.

New Mexico law specifically allows for an award of damages for loss of consortium. New Mexico Uniform Jury Instruction 13-1810A provides for recovery by plaintiff's spouse or child for the "loss of the society, guidance, companionship and sexual relations resulting from the plaintiff's injuries." Essentially, the spouse or child is awarded damages for their own emotional stress and loss associated with the plaintiff's injuries.

In a wrongful death case, the losses can be devastating to a surviving child and spouse. Loss of consortium claims and damages awards can be very large in wrongful death lawsuits. In the case of the wrongful death of a loved one, there is no question that a loss of consortium claim should be included in the wrongful death lawsuit.

Fortunately, only a very small percentage of personal injury claims involve death. Most personal injury claims involve some level of damages for physical injury along with the pain and suffering that goes with those injuries. In most cases, loss of consortium claims arise from a disruption of the relationship between the plaintiff and his or her family as a result of the physical injuries. Often physical injures do cause significant pain and suffering which impacts the daily activities of the plaintiff, including familial activities of every sort. In cases of serious injuries, the plaintiff may also suffer emotional damages such as depression and acute anxiety related to the injuries. These too disrupt the relationship between the plaintiff and his or her family.

The loss of consortium claims has come to be most closely identified with a loss of sexual relations between the plaintiff and his or her spouse. This loss can be significant. Even with moderate soft tissue back injuries, physical activity including sexual relations can become very uncomfortable. There is no question that the disruption of sexual relations presents very real losses often with significant emotional consequences for the relationship.

That being said, the emotional costs of bringing the loss of consortium claim may outweigh any recovery. These costs should be weighed carefully before jumping into a loss of consortium claim.

A loss of consortium claims implies strong emotional bonds and active sexual relations between the plaintiff and his or her spouse. The discovery process on these matters can be burdensome, invasive and embarrassing. Discovery is very broad in a personal injury lawsuit. There are few topics that are off limits particularly when the issue is raised by the plaintiff. The defendant's attorneys will pry into every corner of the relationship between plaintiff and his or her spouse. It takes little imagination to figure out where the investigation will lead.

The question every plaintiff and his or her spouse must ask is whether the loss of consortium claim is worth the emotional stress of opening up these private matters. The answer may very well be yes, but it is important to weigh these considerations before moving forward with the claim.

www.CollinsAttorneys.com