Can Therapy Records Be Requested After An Accident

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One of the most common questions I get from clients after a serious auto accident in San Diego is whether their therapy records can be requested by the insurance company. The short answer is: absolutely, they can. Insurance companies will routinely request these records as part of their investigation into the legitimacy and extent of your damages.

However, understanding how and when these records can be requested, and what rights you have to protect your privacy, is crucial. Generally, the insurance adjuster will send a signed medical release form asking you to authorize the release of your mental health records. You are never obligated to sign it simply because they ask. In fact, I strongly advise my clients to consult with an attorney before signing any such release.

I’ve been practicing personal injury law in San Diego for over 13 years, and I’ve seen firsthand how insurance companies leverage these records to challenge claims. Trained by a former insurance defense attorney, I’ve gained intimate knowledge of how they evaluate, devalue, and deny claims. They’ll often scrutinize your therapy notes for any pre-existing conditions, inconsistencies, or anything they can use to argue your injuries aren’t solely caused by the accident.

What information will the insurance company look for in my therapy records?

Insurance adjusters aren’t looking for the details of your sessions in the same way your therapist is. They’re focused on information that can impact the financial value of your claim. This includes:

• Pre-existing mental health conditions: They’ll want to see if you were receiving treatment for anxiety, depression, or other mental health issues before the accident. This doesn’t automatically disqualify you from recovery, but it can complicate the process.
• Consistency with reported symptoms: They’ll compare your statements to your therapist with what you’ve told them and your doctor. Any discrepancies can raise red flags.
• Diagnosis and treatment plan: They’ll assess the severity of your condition and the length of treatment recommended by your therapist to determine a reasonable cost for your care.

It’s important to remember that these records are confidential, and there are strict rules governing their release under California law. The Health Insurance Portability and Accountability Act (HIPAA) provides strong privacy protections, but those protections can be waived with your authorization. Therefore, carefully consider who you are releasing this information to.

Furthermore, understand that insurance companies often use ‘independent medical examinations’ (IMEs) to challenge your claims. Under CCP § 2032.220, the defense is entitled to one physical examination, but often this doctor has ties to the insurance company and is looking for ways to minimize your injuries.

What should I do if the insurance company requests my therapy records?

Here are a few steps to take if you receive a medical release request for your therapy records:

• Don’t sign anything immediately: Take your time and consult with a personal injury attorney first.
• Review the release form carefully: Make sure it specifically outlines what information is being released and to whom.
• Consider redacting sensitive information: With the assistance of your attorney, you may be able to redact portions of the records that aren’t directly relevant to your accident claim.
• Document everything: Keep a copy of the release form and any communication with the insurance company.

You are not powerless in this situation. An experienced attorney can advocate on your behalf, protect your privacy, and ensure the insurance company doesn’t use your therapy records to unfairly devalue your claim.

If I have pre-existing anxiety, does that invalidate my claim?

Not necessarily. California law recognizes that pre-existing conditions can be aggravated by a subsequent injury. The insurance company must still compensate you for the worsening of your condition as a result of the accident, even if you had some level of anxiety beforehand. This is known as the ‘eggshell plaintiff’ rule. However, proving this aggravation can be complex, which is why legal representation is so important.

How does California’s comparative fault rule impact claims involving emotional distress?

California follows a Civ. Code § 1714 “pure” comparative fault system. This means that even if you were partially at fault for the accident, you may still be able to recover damages. However, your recovery will be reduced by your percentage of fault. Insurance adjusters often use comparative fault to argue you were not solely impacted by the accident.

If your emotional distress is a significant part of your claim, you may need to present evidence of your pre-accident mental state to demonstrate the extent of the worsening. An attorney can help you gather this evidence, such as prior therapy records, testimony from friends and family, and expert opinions from mental health professionals.

Can I sue the insurance company for bad faith if they improperly use my therapy records?

Yes, potentially. Civil Code § 3333.4 outlines the circumstances under which you can bring a bad faith claim against an insurance company. If they unreasonably deny your claim, fail to conduct a fair investigation, or intentionally misrepresent your therapy records, you may be entitled to additional damages beyond the original policy limits. Bad faith claims can be complex, requiring strong evidence and legal expertise.