May an insurer use a private investigator to film me?

You are the victim of medical malpractice and suffer significant damages. However, your insurer questions the extent of your injuries and engages a private investigator to film you. Yes, an insurer may conduct an investigation under strict conditions, but the probative value of such a report is limited and the rules have recently been tightened considerably. A ruling by the Antwerp Court of Appeals on March 27, 2023 perfectly illustrates how judges deal with such detective reports.

The facts: a medical error with far-reaching consequences

The case involved a patient who fell victim to medical error during an epidural puncture (spinal-epidural anesthesia). The anesthesiologist punctured at an incorrect and dangerously high level (Th12-L1), leading to spinal cord damage. The consequences for the patient were dramatic: chronic pain, limited mobility, sensory disturbances and a severe impact on her quality of life.

The insurer of the liable doctor and the hospital suspected that the patient exaggerated ("aggravated") her injury. To prove this, a private investigator was called in. This detective filmed the patient at various times in public spaces, with the goal of demonstrating that her physical limitations, such as her dependence on crutches, were not as severe as claimed.

Appeal court decision

The Antwerp Court of Appeals upheld the liability of the anesthesiologist and the hospital. What is crucial, however, is how the court handled the private investigator's report. Both at first instance and on appeal, the detective report was briskly dismissed.

The court ruled that the determinations of a private investigator, made over limited periods of time, were insufficiently convincing to undermine the detailed findings of various medical experts. In doing so, the court emphasized three key points:

1. One-sidedness: The report was commissioned by a party with a clear financial interest in the case.
2. Selectivity: The commissioning party decides which images and observations to submit to the court, raising doubts about completeness and objectivity.
3. Medical records weigh more heavily: The judge ruled that a detective's observations cannot outweigh the extensive medical examinations and conclusions of several doctors and the court-appointed court expert.

Thus, the report was deemed unreliable and irrelevant in light of the overwhelming medical evidence.

Legal analysis and interpretation

The ruling is perfectly in line with established case law that a judge should consider a sovereign discretion has about the probative value of a detective report. At best, it is considered a factual presumption that must be tested against other, objective elements in the record.

Moreover, this case illustrates the tension between fighting fraud and the right to privacy of the victim. The legislation around this has recently changed significantly.

The old regulation: private investigator act 1991

At the time of the facts, the law of July 19, 1991 regulating the profession of private detective was in force. That law prohibited spying in non-public places without permission, thus making filming in the street a contrario was allowed. A crucial prohibition, however, was the collection of health information. Case law was divided on whether filming a person's physical limitations fell under this prohibition.

The new regulation: private investigation law 2024

Since the Law of May 18, 2024 regulating private investigation rules are much stricter and clearer, influenced in part by the General Data Protection Regulation. There are now five cumulative and strict conditions for insurers wishing to investigate a victim's health status:

1. The assignment must assume a insurance company.
2. The information must necessary be for an action at law.
3. There must be a written question be from an insurer-appointed control doctor. This doctor must have first examined the person, or called for an examination at least three times in vain.
4. The sole purpose of the examination should be to determine whether the alleged health condition is does not correspond to reality.
5. The results of the study may only to the control doctor be communicated, not directly to the insurer.

This new legislation installs the monitoring physician as an objective filter and largely takes away the "element of surprise" from the insurer. More to the point, the new law clearly states that when findings are obtained through serious violations of the law, the court will look no legal effect to it. Unlawfully obtained evidence thus becomes unusable.

What this specifically means

• For the victim: Do not panic if you suspect you are being followed. Your medical records and the reports of the (court) experts remain the most important pieces of evidence. Be aware that an investigation is possible, but know that the insurer must follow strict procedure. A judge will always view a one-sided detective report with suspicion.
• For the insurer: The threshold for using a private investigator for health data has been raised significantly. The procedure through the monitoring physician is compelling and must be closely followed. A "fishing expedition" is out of the question. Unlawfully obtained evidence is worthless and cannot be used in proceedings.
• For the doctor and the hospital: In this case, the focus was on medical malpractice. The detective investigation was a distraction that could not eliminate the core liability. Proper medical practice and transparent communication remain the best defense.

FAQ (frequently asked questions)

1. Is filming by a private investigator a violation of my privacy?
This is complex. Observations in public spaces are not necessarily prohibited. However, once the investigation is aimed at collecting "health data" (such as determining physical limitations), it falls under the AVG and the Private Investigation Act 2024. Without the procedure through a monitoring doctor, the evidence is likely to be unlawful.

2. What is the role of the control doctor in the private investigation law?
The control doctor acts as a gatekeeper or filter. He or she must judge, based on a medical examination (or attempted medical examination), whether there is a legitimate suspicion that the victim's claims are false. Only after a written request from this doctor may a private investigator be engaged.

3. Can a judge just ignore a detective report?
Absolutely. Courts make sovereign judgments on the probative value. As this ruling demonstrates, a judge will disregard a one-sided and selective report if it contradicts objective medical expert opinions.

Conclusion

An insurer's use of a private investigator is not a "free pass. The judge in this case was clear: a few film clips cannot refute a comprehensive medical record. Moreover, the new Private Investigation Act has shifted the buck considerably, providing greater protection for the victim's privacy and making the role of the monitoring physician crucial. The probative value of a detective report remains highly relative and is entirely subject to the critical eye of the judge.