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Lawyer’s Guide to Obtaining Medical Records
This article is written for personal injury attorneys. As you already know, medical records are extremely confidential, privileged and private. Paralegals and attorneys in your office will become very familiar with your client’s personal life. It is imperative to enforce and mandate the highest standards of confidentiality regarding all client records, but particularly so regarding medical records. Attorneys are accountable for these confidentiality standards. Failure to do so can result in legal and ethical malpractice charges.
Personal injury cases are often won or lost based on the information in the plaintiff’s medical records. You must ensure that you obtain all your client’s medical records from any place the client ever received treatment. Additionally, you must verify that the records you received are complete and admissible. You accomplish this by obtaining a certification from each medical provider detailing how the records were maintained and what is included within the records.
Locating Medical Records
Your client is the best starting point for a list of all their health care providers both before and after an accident. We recommend creating and utilizing a checklist for use in the initial interview and for use in follow-up client calls and meetings. Be sure to stress the importance of obtaining a complete list to each client and explain this could be the difference in a win or a loss in the case.
When obtaining complete medical records, there will often be notes related to a variety of medical issues unrelated to the accident that led to the case. For example, your client is a pregnant woman who is experiencing knee and back pain from a slip and fall. In taking down her medical history, one of the doctors she mentions is her OB/GYN. This may seem unrelated to the case, but you never know which medical records may be out there that will impact a case. She may have mentioned her knee and back pain as the result of her slip and fall to her OB/GYN, who made a note of it in her file. Now, suppose there is a note in the OB/GYN file that states the patient was experiencing back pain one month before her accident due to her pregnancy. Forewarned is forearmed. Discovering this piece of information early on allows you to interview the client to discover if the back pain is the same as it was before the accident or if the pain has changed. If it is different, you can make a note of how the pain changed as a result of the accident. If her back pain remains the same as it was before the accident, you can make an educated judgment call about how to address the back pain in negotiations, and if the case goes to trial. Never assume that records for past unrelated illnesses or injuries will not have relevant information related to the case at hand.
Clients often forget to mention previous health care providers either because it slipped their mind or, sometimes, intentionally. In some cases, the omitted information may contain records about drug or alcohol problems, arrests that were drug or alcohol-related, abortions or miscarriages, mental health issues or personal problems. They may also have a prior injury that impacted the same part of the body as the current injury.
Obtaining Medical Records
Due to the Health Insurance Portability and Accountability Act (HIPAA), medical facilities are required by law to obtain signed authorizations that are HIPAA compliant before releasing any records. HIPAA is a federal statute that was enacted in 1996 that applies to medical providers and health insurance companies. It provides a uniform system for access to medical records and patient privacy.
Your medical authorization release forms will also need to comply with any relevant state statutes related to medical records and patient privacy. In the event of a conflict in state and federal statutes, the controlling law will be the one that provides the most privacy protection for the client.
Obtaining privileged medical records from health care providers can be difficult. Many providers will accept a standard universal authorization that attorneys can provide in their intake packets for use in initial client interviews. Other providers will require patient signatures on specialized forms they have created within their offices. Send an email to Matt Wetherington for a copy of the HIPAA authorization we use for our clients.
Certain types of medical records such as psychiatric/mental health records (also referred to in HIPAA as “psychotherapy notes”), chemical dependency records, and HIV/AIDS records are more difficult to obtain.
Psychotherapy records are defined under HIPAA as the detailed notes made by a mental health professional that document conversations occurring in counseling sessions, whether these conversations occurred in private or group sessions. Health care providers do not always take the time to determine which records are protected by HIPAA and which are not. Some providers will assemble all mental health records and send everything when records are requested by a defense lawyer or insurance company.
Dependency records related to chemical, drug, and alcohol addictions are protected by federal law, 42 CFR Part 20, which is separate from HIPAA. Obtaining these records requires special conditions or a court order to obtain. A subpoena is also required. A request for “all medical records” is not supposed to produce these types of records but, sometimes, providers are careless and send these types of records without proper authorization. This is why it is so important to know whether your client has sought treatment for mental health issues, even if not directly relevant to their case.
Medical treatment facilities have many entities, often with similar names. You should know that sending a medical release to one entity will not produce medical records from the sister facility next door. For example, requesting medical records from Grady Hospital will not produce records from Grady Orthopedic Clinics. Separate requests must be made. Also, there can be difficulties from the many sales, mergers, and reorganizations so common among medical facilities. When medical facilities are sold, merged, or reorganized, there is often a name change. Emory Crawford Long Hospital in Atlanta recently changed its name to Emory University Hospital Midtown. It is necessary to research past and present names and obtain client authorization forms in the name of all facilities. It is up to the legal professional to be sure these technicalities are addressed. The most direct (and fastest) way to ensure this is handled properly is to call the facility to obtain instructions as to how to obtain all the records needed.
Examining Medical Records
Once medical records have been obtained, legal professionals must be trained to carefully scrutinize those records for mention of any other health care providers. If new providers are revealed, those must be discussed with the client, who must sign additional authorization forms to retrieve the additional records.
Medical bills and insurance statements can also reveal additional medical facilities and providers. To ensure all providers have been revealed, we recommend the following steps:
- In the initial interview, question the client carefully about all current and previous health care providers.
- Prepare an initial list of all health care providers.
- In later conversations with the client as the case progresses, continue to question the client carefully about any new health care providers, particularly as new records are continually gathered.
- Cross-reference known medical care providers with actual medical bills.
- Cross-reference known medical care providers with actual pharmacy bills.
- Cross-reference known medical care providers with any health insurance records.
- Cross-reference known medical care providers with any Social Security records if the plaintiff has made a Social Security disability claim.
- Cross-reference known medical care providers with any no-fault records if there is a no-fault system in your jurisdiction.
- Cross-reference known medical care providers with workers’ compensation records if the current injury arises out of a work-related incident, such as an auto accident while on the job.
- Review the client’s discovery responses and deposition testimony of client, spouse, and family members.
- As records are obtained, note any referrals or consults involving other physicians.
Never become complacent. Lists and records must be constantly updated. Medical care is ongoing. Create a well-developed system to ensure medical records are organized so that documents can be easily found when needed.
When paralegals or associates find questionable, problematic, or embarrassing information in a client’s medical records, they must be trained to immediately bring this information to the attention of the supervising attorney. For example, suppose your case involves a severe ankle injury, and it discovered that the client had previously broken the same ankle. With knowledge of the previous injury, the attorney can collect evidence that will prove that the prior injury was completely healed and has no bearing on the current case. Or, the attorney can establish that the current injury aggravated the prior injury. This type of evidence can be skillfully addressed when known in advance. But, finding out immediately before a trial could very well cause a loss of the case in court.
In the very worst-case scenario, your team never discovers information about a prior accident, and the defense attorney introduces this evidence at trial. This will adversely impact the jury’s opinion about the cause of the injury and the credibility of the plaintiff.
Carefully Review Client Depositions
When written discovery is served on the plaintiff, your team will have the opportunity to carefully review the answers. This generally occurs before your client is deposed ahead of trial. These answers may reveal additional medical providers and facilities from which to request medical records. At the deposition, you should question your client about medical providers and facilities to do everything possible to ensure you have information about all medical records. A well-trained legal team will provide the supervising attorney with an outline of areas of questions before your client’s deposition.
Never have clients sign blank medical authorization forms to submit to the defense attorney. This will set your case up to fail. The defense attorney may discover medical treatment facilities or providers of which you and your team do not know. These mystery records usually appear at trial with devastating results for your client. Sometimes, defense attorneys unethically use the release to talk to medical providers without your client’s consent.
Never request medical records that only begin from the date of the accident. This is a bad practice as you must know your client’s entire medical history, as discussed above.
Finally, make sure your team knows to continuously request updated medical records as treatment is ongoing. Important information is often located in the most recent records. Medical authorization forms have a shelf life that is typically good for one year. When requesting updated records, a new authorization form may be required. Be sure your team has a calendaring/docketing system so that it knows when records have not been received as requested so they can circle back with the providers to ensure nothing is missed.