Obtaining Medical Records
There are various routes and considerations when it comes to obtaining medical records.
When assessing a case, it is first important to start by deciding on what is in fact relevant and what may not be. For example, let’s say a plaintiff is suing a hospital and or surgeon for complications surrounding blood clot following an ORIF. Relevant documentation would include things like an active medication list and administration log, nursing documentation relevant to the employment (or lack) of non-pharmacological interventions such as plexi pumps, any lab works, surgical notes, and MD documentation, etc. What you don’t necessarily need are notes from the patient’s neuro consult five years ago from an unrelated admission. So why not just ask for the whole chart? Well, several reasons. One, the more you request, the longer it is likely to take to receive. This can be detrimental to a case when working in a limited window of discovery. Two, it can be extremely expensive as most states allow for healthcare providers and facilities to charge a minimum fee for copying these records. Three, you just don’t need everything. Keep in mind that access to a medical record does not grant access to everything. Things such as incident reports and internal facility documents (even if directly referencing your client) are not privileged documents (Dickinson, J., Meyer). In addition, health records such a behavioral health notes are also not part of the general medical record and may require specific authorization to obtain.
When requesting records, it is important to be specific and include any authorizing documentation such as a signed HIPAA release form by the patient. In some states, consent is not always required in order to request medical records, but it is of vital importance that you take into consideration your states specific rule set when doing so as record release can be delayed.
Request of Production occurs between two parties as a formal request of disclosure of records. If holding party fails to produce these records, then a motion to compel can be files with the court (Dickinson, J., Meyer).
Alternatively, a more direct route is to file a subpoena. This is generally directed to the individual or individuals with the most knowledge relating to the storage, maintenance and retrieval of the medical record and required this individual or party to appear in court or deposition with the requested documentation (Dickinson, J., Meyer).
If an owning (or retaining) party fails to produce the documents, there can be severe consequences. Solicitation of Medical Records is when a party deprives the court of evidence (Dickinson, J., Meyer). This could be through the accidental or purposeful loss or destruction of records or devices. Such actions are considered one of the worse forms of discovery misconduct and may result in punitive damages secondary to ruling or even default judgement against that party. Additionally, medical professionals risk potential disciplinary actions from their relevant accrediting boards.
Additional factors to keep in mind when it comes to obtaining medical records are things such as ownership. Access to one’s own record is a protected right; however, it does not imply ownership. While you have the right to access and release your medical records, you retain no authority when it comes to the record itself. This is to say, that you cannot demand a record be altered or destroyed as it is the property of the creating party.
When requesting medical records, there are no requirements for the records to be certified. However, a certified copy of a medical record does meet the criteria for admission in a court of law. Therefore, it is generally advisable to obtain certified copies. Additionally, keep in mind that a certified copy does not guarantee that a record is complete or “Whole Cloth”. Instead, it simply guarantees that it is an exact duplicate of the original (Dickinson, J., Meyer).
In summation, know what you are looking for. Know what you have rights to and what you don’t. Know your states specific requirements of request and be sure to have consents and HIPAA releases in place.
Dickinson, J., Meyer, A., Huff, K.J., Wipf, D.A., Zorn, E.K., Ferrell, K.G., Mancuso, L., Pugatch, M.B., Walker, J., & Wilkinson, K. (Eds.). (2019). Legal Nurse Consulting Principles and Practices (4th ed.). Routledge.