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COUNSELING RECORDS NOT SECURE IN W.VA.
By Tony Rutherford


While doing some legal research at the Drinko Library, I read an article in MU's "The Parthenon" on “Campus Counseling Center Available For Students With Problems.” Steve Hensley, then director, and “brochures” stated that “at no time during or after a student’s 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.” Hensley added that the center will disclose nothing without a client’s 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 State’s 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 plaintiff’s 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.
The West Virginia Supreme Court and the legislature has refused to limit intrusive defense attorneys.
For instance, an employee of Branches 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 insurer’s defense attorney demanded access to the injured woman’s 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 woman 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 that’s only the beginning. Still another insurance defense attorney gained access HER HUSBAND'S 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 has yet to rule on the constitutionality of the broad and overly vague statute. In the Thompson v. Branches case, they side-stepped the confidentiality AND constitutional issues by declaring that the statute of limitations began when the woman's outspoken, imbiding husband bluffed an attorney with his suspicions. Thus, based on the ruling, women think the same way as their husbands. And believe it or not, the US Supreme Court let the decision stand.
Later, the West Virgiia Supreme Court refused to hear the Thompson v. Prestera and Campbell Woods, which involved negligence under federal standards. The Cabell County Court ruled that Mr. Thompson, though impaired, gave “informed consent” to release records from the 70s of which he had no memory.
I have a similar horror story. You've observed the photos on this page. After I was the victim of a violent attack, I sought justice. Instead of prosecuting the perpetrator, the "system" became more interested in my unrelated treatment for post-traumatic stress following a decade old car accident. Despite a bulging bond that required surgical correction with pins, the focus stayed on the victim's OTHER medical records, not how the injury occurred. Furthermore, the circuit court REFUSED to let the jury SEE the photos posted here.
This 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!