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Legal How-To: Getting Medical Records for Your Case

By Brett Snider, Esq. on May 17, 2013 9:55 AM

Medical records may be the foundation of your injury claim or the linchpin of your defense. But getting medical records for your lawsuit can be difficult.

The following steps will help you obtain those sensitive medical documents in order to win your case and get some peace of mind.

1. Request Documents From the Medical Provider.

Often in the case of a serious injury, the medical records are kept electronically by a hospital or surgical clinic. They are generally protected from disclosure by the Health Insurance Portability and Accountability Act (HIPAA).

Even if the records are your own, you'll have to sign a medical records release form. Most hospitals will also have their own procedure for a former patient requesting her medical record (here's one example from a San Francisco hospital), and they may charge you a fee per page to obtain copies.

2. Use Discovery to Obtain Medical Records From the Other Party.

If you are the defendant in an injury case and you would like to know the extent of the defendant's injuries through her medical records, you can get them through the discovery process.

Through discovery, each party is entitled to documents which are relevant to the legal claims and defenses in the case.

You may make a Request for Production (RFP) from the other party for their records, but if they deny you, you may need to use a subpoena.

3. Subpoena Medical Records From Providers.

It is fairly common for medical records not to be shared easily in a civil suit. But you can use the power of the court to request that certain documents be brought to court.

A subpoena duces tecum allows you to request medical records be delivered to the court by the medical provider's custodian of records. After the court reviews them for possible protected material under HIPAA, either party may inspect or copy them.

The other party to the civil suit may attempt to quash the subpoena for privacy reasons, but if it is specific enough in scope, judges are inclined to allow the subpoena.

Need More Help?

Laws about patient medical records are complicated, and those representing themselves in court often face obstacles in obtaining them. That's why it may be best to contact an experienced personal injury attorney familiar with HIPAA laws in your state to get a clearer view of your options for getting medical records.

Are you facing a legal issue you'd like to handle on your own? Suggest a topic for our Legal How-To series by sending us a tweet @FindLawConsumer with the hashtag #HowTo.

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