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Insecure Feelings in WV

Be careful what you say to a counselor in this state! If you have an auto accident, the defense attorneys will come looking for your mental health records.... and GET THEM to use in court! Suddenly, what you FELT is now FACT

While doing some legal research at the Drinko Library, I an article on Campus Counseling Center Available For Students With Problems. Steve Hensley, the director, and brochures stated that at no time during or after a students session will any of the information be disclosed to any person outside of the program. The article indicated that privacy rights, including confidentiality of written counseling services, including test or surveys are also fully protected.
Mr. Hensley added that the center will disclose nothing without a clients permission and that all records are destroyed following graduation.
Although well intentioned, nothing could be further from reality in the State of West Virginia. The State has no testimonial privilege for any type of medical, counseling or psychiatric records. In fact, the States Confidentiality Statute (Sec. 27-3-1) specifically grants a broad exception --- a subpoena and a court order.
Reasonably one would think that sufficient. Sorry.
Lawyers representing insurance companies in routine garden variety personal injury cases demand access to all of a plaintiffs medical records, including all forms of counseling (marital, addictions, mental health, domestic violence). Any time that a plaintiff claims pain and suffering and emotional distress, the defense attorneys swarm in on the records like feeding sharks.
As I write this article, one case is pending before the West Virginia Supreme Court. Another will soon follow.
A woman employee of a domestic violence shelter suffered an injury to her leg while helping another employee jump start a vehicle. A law suit was filed in Cabell County Circuit Court asking for compensation. However, the insurers defense attorney demanded access to the injured womans counseling records. Even though her husband was no where near the scene, they asked questions about his mental state. After he suffered a heart attack, the employee settled the auto accident suit. She and her husband then sued Branches for breaching confidentiality. Sometime this summer, the West Virginia Supreme Court will issue its opinion.
But thats only the beginning. Still another insurance defense attorney gained access to the mans substance abuse records. These are allegedly protected by both federal and state law.

During discovery, the insurance attorney admitted that they regularly seek counseling records --- and get them --- in personal injury cases. Hence, if you are a student and injured in a car accident, your records could be spread out in court as part of the public record.
Although the U.S. Supreme Court has granted a privilege for these records, the privilege applies only in federal courts. The U.S. Supreme Court admits that state laws are simply patchwork and an uncertain privilege is like no privilege at all.
The West Virginia Supreme Court will soon be asked to rule on the constitutionality of the broad and overly vague statute. Theres a catch: The Court has to agree to hear the case. Unfortunately, prior to reaching the merits, the court will have to determine whether the mentally impaired man gave informed consent to release records from the 70s of which he had no memory.
Finally, this letter is not meant to discourage you from seeking counseling. Upon entering treatment, you should ask your therapist to explain the parameters of confidentiality. The notes of your session can and will be released against your will if you happen to become the subject of civil litigation. You might want to request that your therapist keep his or her pen in their pocket!