Lead Opinion
For the third year in a row, this Court has been asked to consider whether medical protective orders are valid and enforceable to limit the dissemination and retention of medical records obtained through discovery.
I.
FACTUAL AND PROCEDURAL HISTORY
Because the errors assigned in each of the cases sub judice are substantially the same, they have been consolidated for this Court’s consideration and resolution. The facts giving rise to each insurance company’s request for relief are as follows.
A. Case Number 12-0304: State of West Virginia ex rel. State Farm Mutual Automobile Insurance Company v. Marks
On June 6, 2008, Matthew L. Huggins (hereinafter “Mr. Huggins”) was injured in a motor vehide accident with Thomas Shuman (hereinafter “Mr. Shuman”). Thereafter, on May 14, 2010, Mr. Huggins filed a cause of action against Mr. Shuman; Mr. Shuman’s employer, Woodward Video, LLC; and the owner of Woodward Video, Brian Woodward. In his attempt to recover for the injuries he sustained, Mr. Huggins filed a claim against the defendants’ insurer, Nationwide Mutual Insurance Company (hereinafter “Nationwide”), as well as claims for medical payments and underinsured motorist benefits (hereinafter “UIM benefits”) against his own insurer, State Farm Mutual Automobile Insurance Company (hereinafter “State Farm”). Mr. Huggins disagreed with Nationwide over the terms governing the disclosure of his medical records and information to Nationwide, and State Farm eventually became involved in the dispute and requested the circuit court to stay its decision regarding a medical protective order pending the United States Supreme Court’s resolution of State Farm’s appeal in Bedell II.
The circuit court denied State Farm’s requested stay and, on May 23, 2011, the circuit court entered a “Protective Order Granting Plaintiff Protection For His Confidential Medical Records and Medical Information,” which is at issue herein. Nationwide and State Farm objected to the terms of the order, contending, among other things, that the medical protective order was too restrictive because it affected the insurers’ ability to retain and report the information to governmental agencies regulating insurers and to retain and utilize such information in its claims files. State Farm renewed its request for a stay of the proceedings or for modification of the protective orders terms, which relief the circuit court refused by order entered December 7, 2011. The circuit court consolidated this case with the companion case presently before the Court, i.e., Case Number 12-0210, and, on January 13, 2012, the circuit court entered an order affirming the medical protective orders entered in both
B. Case Number 12-0210: Nationwide Mutual Insurance Company v. Faris
On May 2, 2008, Carmella J. Faris (hereinafter “Mrs. Faris”) was injured in a motor vehicle accident with Linda Lee Harding (hereinafter “Ms. Harding”), who was insured by Nationwide. Mrs. Faris sought to recover benefits for her injuries from Ms. Harding’s Nationwide policy and signed medical authorizations to permit Nationwide to obtain her medical records and bills relating to the injuries she sustained in the accident. Thereafter, Mrs. Faris, through counsel, revoked the authorizations and, on April 5, 2010, filed the instant lawsuit against Ms. Harding to obtain compensation for her injuries.
On July 12, 2011, the circuit court entered a “Protective Order Granting Plaintiffs Protection For Their Confidential Medical Records and Medical Information,” which is at issue herein. Nationwide objected to the terns of the order, contending, among other things, that the medical protective order was too restrictive because it affected its ability to retain and report the information to governmental agencies regulating insurers and to retain and utilize such information in its claims files. The circuit court consolidated this case with the companion case presently before the Court, ie., Case Number 12-0304, and, on January 13, 2012, the circuit court entered an order affirming the medical protective orders entered in both eases. From this adverse ruling, Nationwide appeals to this Court.
II.
STANDARD OF REVIEW
Given the different procedural posture of each of the cases sub judice, our consideration and decision of each ease necessarily will be governed by different standards of review.
A. Case Number 12-0304: State Farm’s Petition for Writ of Prohibition
State Farm seeks relief from the circuit court’s order enforcing the medical protective order through a petition for writ of prohibition. We previously have held that “[a] writ of prohibition is available to correct a clear legal error resulting from a trial court’s substantial abuse of its discretion in regard to discovery orders.” Syl. pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens,
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
B. Case Number 12-0210: Nationwide’s Appeal
Nationwide seeks relief from the circuit court’s order enforcing the medical protective order through an appeal to this Court. “Generally this Court reviews a circuit court’s ruling on a discovery request for an abuse of discretion.” State ex rel. Ward v. Hill,
[a] trial court is permitted broad discretion in the control and management of discovery, and it is only for an abuse of discretion amounting to an injustice that we will interfere with the exercise of that discretion. A trial court abuses its discretion when its rulings on discovery motions are clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock our sense of justice and to indicate a lack of careful consideration.
Syl. pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co.,
III.
DISCUSSION
As we noted at the outset of this opinion, this Court has now been requested, on three occasions, to consider and condemn medical protective orders that limit the manner in which a party, i.e., insurance company, receiving an opponent’s confidential medical records may use and disseminate such information. A painstaking comparison of the medical protective order approved by this Court in Bedell II
In their quest to invalidate the subject medical protective orders, State Farm and Nationwide have advanced numerous arguments to this Court regarding (1) the effect the orders might have on their mandatory statutory reporting obligations; (2) the perceived burdens attending their compliance with such orders; (3) alleged constitutional implications related to enforcement of the orders and the attendant limitations on the use of the medical information subject thereto; (4) the lack of good cause for the orders’ issuance against insurance companies in light of the Insurance Commissioner’s promulgation of privacy regulations; and (5) a request for a definitive definition of “medical record.” Each of these assigned errors will be reviewed and resolved in turn.
A. Mandatory Reporting Obligations
The first issue we will consider is the assertion by State Farm and Nationwide that compliance with the circuit court’s entry of the subject medical protective orders will preclude them from fulfilling their mandatory reporting obligations imposed by the federal government, this State, and our sister states. Among the reporting duties they cite are statutes and regulations designed to identify, address, and prevent fraud;
To begin, in Bedell I, this Court specifically prohibited a protective order from requiring document return or destruction prior to the expiration of the reporting period imposed by the West Virginia Insurance Commissioner for the retention of records:
A court may not issue a protective order directing an insurance company to return or destroy a claimant’s medical records prior to the time period set forth by the Insurance Commissioner of West Virginia in §§ 114-15-4.2(b) and 114-15-4.4(a) of the West Virginia Code of State Rules for the retention of such records.
Syl. pt. 7,
[Sjhould any insurance carrier desire to retain such confidential medical records, and medical information beyond the final dismissal of this case, they may do so: provided, however, that upon conclusion of the appropriate period established by W. Va.C.S.R. § 114-15-4.2(b), all medical records, and medical information, or any copies or summaries thereof, will either be destroyed, with a certificate from Defendants’ counsel as an officer of the Court, or by an officer or other authorized person of the insurance carrier, that the destruction has been completed as set forth in this Protective Order, or alternatively all such material will be returned to Plaintiffs counsel without any retention in any format by any insurance carrier or any otherperson who was furnished such materials and information pursuant to the terms of this Protective Order. Specifically, under no circumstances shall the medical records and medical information or any copies or summaries thereof, be kept longer than the provisions of § 114 — 15—4.2(b) require, with the retention period beginning to run at the conclusion of this case, including any possible appeal period. The retention period shall continue until the lesser of “the current calendar year plus five (5) calendar years,” or “from the closing date of the period of review for the most recent examination by the commissioner, ” or “a period otherwise specified by statute as the examination cycle for the insurer.” W. Va. C.S.R. § !U-15-I2(b).
Protective Order Granting Plaintiff Protection for His Confidential Medical Records and Medical Information, No. 10-C-176-1, at pp. 2-3, ¶ 2 (Cir. Ct. Harrison Cnty., W. Va. May 23, 2011), petition far writ of prohibition filed, W. Va. S.Ct. No. 12-0304; Protective Order Granting Plaintiffs Protection for Their Confidential Medical Records and Medical Information, No. 10-C-123, at pp. 2-3, ¶ 2 (Cir. Ct. Harrison Cnty., W. Va. July 12, 2011), petition for appeal filed, W. Va. S.Ct. No. 12-0210 (emphasis added; footnote omitted).
Moreover, unlike the medical protective order we previously approved in Bedell II, the medical protective orders at issue herein include additional language that specifically addresses the concerns voiced by State Farm and Nationwide that compliance with the circuit court’s orders in the underlying proceedings will negatively impact their ability to fulfill their obligations to other governmental entities and judicial tribunals.
[Djuring the period of possession of the protected medical records and information, and before destruction or return is required by this Protective Order, should any person believe they are required to produce such protected information to a person or entity by operation of law, then application to permit such disclosure may be made by motion to the Court for such disclosure or by an agreed order.
Protective Order, No. 10-C-176-1, atp. 3, ¶2 (W.Va.S.Ct. No. 12-0304); Protective Order, No. 10-C-123, at p. 3, ¶ 2 (W.Va.S.Ct. No. 12-0210). Rather than restricting the insurers’ ability to fulfill their mandatory reporting requirements as claimed by State Farm and Nationwide, the inclusion of this additional language actually facilitates the insurers’ compliance therewith.
Furthermore, as with the medical protective order at issue in Bedell Ilf
[Sjhould Defendants’ counsel desire to retain a copy of the protected medical records produced in this case, the same shall be permitted only if those protected medical records are maintained in a sealed manner in Defense Counsel’s file and not used for any other purpose whatsoever except upon further order of this Court, or in response to lawful process after notice to the protected person, or in response to a lawful order of another Court with jurisdiction, or upon written consent of the protected person whose medical records and information is protected herein.
Protective Order, No. 10-C-176-1, at p. 3, ¶ 2 (W.Va.S.Ct. No. 12-0304); Protective Order, No. 10-C-123, at p. 3, ¶2 (W.Va.S.Ct. No. 12-0210). This provision, then, would permit an insurer to request permission to use such protected information to fulfill its mandatory reporting obligations after the medical protective order, itself, has expired.
Finally, to the extent that State Farm and Nationwide claim that the laws of other jurisdictions, i.e., Illinois and New York, prohibit them from removing information from their claims files, we find this interpretation of the pertinent statutes to be mistaken. While insurers may not sua sponte remove information from their claims files in Illinois, the governing statutes in that state do, in fact, provide a method by which insurers may request permission to purge information from their claims files. See 111. Admin. Code tit. 50, § 901.20 (2012) (providing form affidavit for insurer to use to request permission to
It is apparent, then, that the medical protective orders at issue herein expressly recognize that a party receiving the protected information may be obligated to disclose the same to fulfill its mandatory reporting obligations. Because the protective orders make specific provision for this potentiality, we reject the arguments of State Farm and Nationwide to the contrary.
B. Burdensome Compliance
Next, we consider the contention of State Farm and Nationwide that compliance with the “return or destroy” directive of the medical protective orders is unduly burdensome insofar as their claims files are maintained electronically and cannot be substantially modified after their creation. We previously have reviewed and rejected a similar argument.
In Bedell I, we briefly addressed a corollary issue of whether a protective order could bar an insurer from storing an injured party’s medical records electronically, concluding that the injured plaintiff had not demonstrated good cause to “bar[] the electronic storage of the medical records in this case.”
In Bedell II, however, we denied relief based upon a similar complaint that compliance with the medical protective order at issue therein was burdensome and/or impossible because it required the destruction of the insurer’s business records and because it required the insurer to monitor its dissemination of the protected material. We rejected these arguments because the protective order required the return or destruction of only the medical records and medical information obtained pursuant to the order, and not of the insurer’s entire claim file, which it properly could maintain as a business record.
Here, we are asked to consider another variation of the “burdensome compliance” argument: the insurers’ information systems will suffer calamitous consequences if they comply with the terms of the medical protective orders because they electronically maintain the claims files in which they store the protected information and electronically
While we appreciate the insurers’ lament that compliance with this provision of the protective order may prove to be difficult, we do not believe that difficulty equates to impossibility. Modern information systems are remarkable in their ability to maintain large quantities of data in a finite space and to share this information electronically with virtually any other data system in the world. Such systems also are invaluable in their ability to be programmed to satisfy the exact needs of a precise user. From the representations of State Farm and Nationwide, it appears that neither insurer currently has in place software or hardware components that would allow them to extract protected medical records and medical information from their electronic claims files that would permit them to comply with the return or destroy provisions of the subject protective orders. That does not mean, however, that slight technological modifications could not be developed to address this contingency to permit the generation of reports of protected materials that then would allow the extraction of such documents upon the expiration of an order of protection. Thus, for the same reasons we previously have denied relief on this basis, we again find this contention to be "without merit.
C. Constitutional Issues
State Farm and Nationwide additionally suggest that enforcement of the medical protective orders entered by the circuit court impermissibly infringes upon their constitutional right to free speech. The insurers further contend that the protective order impinges their fundamental property and liberty interests by violating the full faith and credit as well as the due process clauses.
With respect to their first constitutional contention, the insurers complain that the protective orders intrude upon their First Amendment right to free speech
In the same vein, State Farm and Nationwide argue further that the subject protective orders violate the full faith and credit clause
Although couched in constitutional terms in this assignment of error, previously in this opinion we already have considered and rejected the perceived hindrances to the insurers’ ability to comply with their mandatory reporting obligations imposed upon them by this State, other states, and the federal government and to maintain their claims files as they see fit. Merely changing the phraseology in which such assignments of eiTor are presented to this Court does not alter our assessment that the medical protective orders entered in the cases sub judice adequately address the insurers’ mandatory reporting obligations and facilitate their compliance therewith while allowing them to maintain their claims files in the manner of their choosing.
To the extent, however, that matters of constitutional import have been injected into these issues, we note further that these same issues have been presented to the United States Supreme Court and summarily rejected in its denial of a writ of certiorari in Bedell II. See State Farm Mut. Auto. Ins. Co. v. Bedell, — U.S.-,-,
D. Insurance Commissioner’s Regulations
State Farm and Nationwide further argue that the injured plaintiffs herein have not demonstrated good cause for the issuance of the medical protective orders insofar as the West Virginia Insurance Commissioner has promulgated numerous regulations that dictate how an insurer may use and disseminate confidential medical information.
Distilled to its most basic essence, in this assignment of error the insurers basically request that we find that, because they already are subject to insurance regulations that regulate the dissemination of confidential information, insurance companies should not also be subjected to medical protective orders that similarly limit the manner in which they may use the information protected thereby. This proposition is problematic for two reasons: (1) it enlarges the authority of an administrative agency beyond the scope of its legislative delegation of power by substituting
1. Authority of administrative agency is limited by enabling legislation. An administrative body is vested with only that power specifically granted to it by the Legislature. In other words, “[a]n administrative agency is but a creature of statute, and has no greater authority than [that] conferred under the governing statutes.” State ex rel. Hoover v. Berger,
As a general rule the Legislature, in delegating discretionary power to an administrative agency, such as a board or a commission, must prescribe adequate standards expressed in the statute or inherent in its subject matter and such standards must be sufficient to guide such agency in the exercise of the power conferred upon it.
Syl. pt. 3, Quesenberry v. Estep,
By the same token, “[i]n order for a delegation of authority by the legislature to be constitutional, the legislature must prescribe adequate statutory standards to guide the agency in the administration of the statute, and not grant the agency unbridled authority in the exercise of the power conferred upon it----” Syl. pt. 2, in part, State ex rel. Mountaineer Park, Inc. v. Polan,
We agree with the insurers’ representation that the Insurance Commissioner has promulgated regulations that define the manner in which an insurance company may use confidential information.
2. Circuit courts are vested with broad discretion to manage discovery. As part of the discovery process in the cases sub judice, the circuit court issued the subject medical protective orders. We long have held that matters relating to the conduction of discovery rest within the sound discretion of the court presiding over such proceedings.
The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and pi’ocedural rulings. Thus rulings on the admissibility of evidence and the appropriateness of a particular sanction for discovery violations are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.
Syl. pt. 1, McDougal v. McCammon,
A trial court is permitted broad discretion in the control and management of discovery, and it is only for an abuse of discretion amounting to an injustice that we will interfere with the exercise of that discretion. A trial court abuses its discretion when its rulings on discovery motions are clearly against the logic of the circumstances then before the court and so arbitrary and unreasonable as to shock our sense of justice and to indicate a lack of careful consideration.
Syl. pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co.,
E. Deñnition of “Medical Record”
As a final matter, Nationwide requests this Court to adopt definitive definitions of “medical records” and “medical information” to provide clarity to the circuit court’s medical protective order. In view of the broad discretion afforded to circuit courts to regulate discovery in proceedings over which they preside,
In Bedell II, we addressed the meaning of “medical records” and “medical information” only to the extent necessary to ascertain whether the circuit court had intended to use the two terms interchangeably. See Bedell II,
IV.
CONCLUSION
For the foregoing reasons, in Case Number 12-0304, the requested writ of prohibition is hereby denied. Furthermore, in Case Number 12-0210, the January 13, 2012, order of the Circuit Court of Harrison County is hereby affirmed.
Case Number 12-0304 — Writ Denied.
Case Number 12-0210 — Affirmed.
Notes
.We previously have been asked to consider variations of this same substantive matter in 2010 and 2011. See State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell,
. See supra note 1.
. See State Farm Mut. Auto. Ins. Co. v. Bedell,U.S.-,
. See Small v. Ramsey,
. See State Farm Mut. Auto. Ins. Co. v. Bedell,U.S.-,
. While we upheld the substance of the medical protective order in Bedell I, we nevertheless established limits on the order’s document retention temporal requirements to permit insurers to comply with their mandatory statutory reporting obligations. See generally Syl. pt. 7, Bedell I,
. See generally Bedell II,
. See, e.g., 42 U.S.C. § 1395y(b)(8) (2011) (Main Vol.2012) (concerning insurer's obligations under Medicare Secondary Payer Act); W. Va.Code. § 33-41-5(a) (2004) (Repl.Vol.2011) ("A person engaged in the business of insurance having knowledge or a reasonable belief that fraud or another crime related to the business of insurance is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner."). See also W. Va. C.S.R. § 114-57-15.2 (2002) ("Nothing in this section shall prohibit, restrict or require an authorization for the disclosure of nonpublic personal health information by a licensee for the performance of the following insurance functions by or on behalf of the licensee: claims administration; claims adjustment and management; detection, investigation or reporting of actual or potential fraud, misrepresentation or criminal activity; underwriting; policy placement or issuance; loss control; ratemaking and guaranty fund functions; reinsurance and excess loss insurance; risk management; case management; disease management; quality assurance; quality improvement; performance evaluation; provider credentialing verification; utilization review; peer review activities; actuarial, scientific, medical or public policy research; grievance procedures; internal administration of compliance, managerial, and information systems; policyholder service functions; auditing; reporting; database security; administration of consumer disputes and inquiries; external accreditation standards; the replacement of a group benefit plan; activities in connection with a sale, merger, transfer or exchange of all or part of a business or operating unit; any activity that permits disclosure without authorization pursuant to the federal Health Insurance Portability and Accountability Act privacy rules promulgated by the U.S. Department of Health and Human Services; disclosure that is required, or is one of the lawful or appropriate methods, to enforce the licensee's rights or the rights of other persons engaged in carrying out a transaction or providing a product or service that a consumer requests or authorizes; and any activity otherwise permitted by law, required pursuant to governmental reporting authority, or to comply with legal process. Additional insurance functions may be added with the approval of the commissioner to the extent they are necessary for appropriate performance of insurance functions and are fair and reasonable to the interest of consumers.”).
. See W. Va.C.S.R. § 114-57-15.2.
. See W. Va.C.S.R. § 114-57-15.2.
. The insurers have not presented evidence demonstrating that the circuit court’s enforcement of the subject medical protective orders actually has interfered with their obligations under orders issued by other tribunals but, rather, that such a result is a possible consequence of their compliance with the temporal requirements of such orders.
. See Bedell II,
.The First Amendment to the United States Constitution prohibits government action that places restrictions on speech: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
. Article IV, section 1 of the United States Constitution requires, in pertinent part, that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State....”
. Pursuant to West Virginia Constitution Article III, section 10, "[n]o person shall be deprived of life, liberty, or property, without due process of law....”
. See, e.g. W. Va.C.S.R. § 114-57-15.1 (2002) ("A licensee shall not disclose nonpublic personal health information about a consumer or customer unless an authorization is obtained from the consumer or customer whose nonpublic personal health information is sought to be disclosed.”); W. Va.C.S.R. § 114-62-3.1 (2003) ("Each licensee shall implement a comprehensive written information security program that includes administrative, technical and physical safeguards for the protection of customer information. The administrative, technical and physical safeguards included in the information security program shall be appropriate to the size and complexity of the licensee and the nature and scope of its activities.”).
. See supra note 16.
. The separation of powers doctrine is set forth in section 1 of Article V of the West Virginia Constitution:
The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature.
. A circuit court’s authority to issue a protective order is part of its general power to manage discovery in proceedings over which it presides:
Upon motion by a party or by the person from whom discovery is sought, including a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1)That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
(4) That certain matters not be inquired into or that the scope of the discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the court;
(6) That a deposition after being sealed be opened only by order of the court;
(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be open as directed by the court.
If the motion for a protective order is denied in whole or in part, the court may, on terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
W.Va. R. Civ. P. 26(c) (emphasis added).
.In rendering this ruling, we make no finding as to the validity of the Insurance Commissioner’s regulations referenced herein nor do we find it improper for the Commissioner to require insurance companies to comply with such rules. We merely wish to clarify that, as between the Insurance Commissioner and the circuit court, the circuit court is the tribunal authorized to regulate matters pertaining to the discovery and dissemination of confidential medical records in proceedings over which the court presides.
. See Syl. pt. 1, B.F. Specialty Co. v. Charles M. Sledd Co.,
. See Syl. pt. 1, B.F. Specialty Co.,
. See W. Va. R. Civ. P. 26(c).
Concurrence in Part
concurring, in part, and dissenting, in part:
I write separately to reiterate my dissent in State ex rel. State Farm Mutual Automo
Dissenting Opinion
dissenting:
I stand by my dissent in our previous medical protective order case, State ex rel. State Farm Mutual Automobile Insurance Company v. Bedell,
However, even if I agreed with the majority, I would point out that their case-by-case medical protective order approach to protect medical records is inadequate. Requiring a plaintiffs lawyer to go to court to obtain a medical protective order in every case is time consuming and expensive to all parties. Injured plaintiffs and insurance companies want their cases resolved quickly and inexpensively. They do not want pre-trial motions delaying the resolution of the claim. More importantly, trial courts are too busy to continually hear motions for protective orders.
To avoid the expensive, time-consuming delays caused by case-by-case hearings on medial protective orders, this Court should adopt a medical privacy rule addressing the matter. A rule (such as the following rule adopted in South Dakota) that would eliminate the majority’s case-by-case approach would state:
Medical Privacy
The production of a record of a health care provider, whether in litigation or in contemplation of litigation, does not waive
any privilege which exists with respect to the record, other than for the use in which it is produced. Any person or entity receiving such a record may not reproduce, distribute, or use it for any purpose other than for which it is produced.
This rule does not bar any person or entity from complying with any court order, or state or federal law or regulation authorizing disclosure of information that otherwise would be protected by this rule.
In adopting this rule, the South Dakota Supreme Court became the first court in the country to promulgate a directive restricting the dissemination of medical records produced in litigation or in contemplation of litigation. See, James D. Leach, Medical Privacy: The South Dakota Supreme Court Adopts SDCL 19-2-13, 57 S.D. L.Rev. 1 (2012) (“[T]he burden of pursuing protective orders on a case-by-case basis — often over the strenuous opposition of defendants and them insurers — will usually outweigh the perceived benefit.”).
Accordingly, I would vote in favor of adopting such a rule in West Virginia.
Therefore, I respectfully dissent.