Some documents you collect during discovery and litigation preparation are straightforward—like deeds, trial transcripts, or insurance policies. Medical records, on the other hand, are not always as simple.
From tracking down multiple providers to maintaining HIPAA compliance, the medical record retrieval process can present a drain on staff time or even cause delays in preparation if you keep the process in-house.
Here’s what you need to know about the importance of medical record retrieval and how to approach the process for litigation.
Patient records illustrate current and past health care provided to individuals—information that can be essential in legal proceedings. Institutional policies, the type of provider and care, and the habits and communication skills of specific physicians all play a role in what information you can expect to receive in a medical record.
So, what is included in medical records? Medical records may contain: 1
If you need more detailed information, you may need to request it in addition to the above information. This supplementary information could include:
Two of the main ways medical records are used in litigation are for proof of injury or medical malpractice.
Whether injury or death results from an assault, environmental cause, workplace accident, or other, medical records can help provide critical details. They’re used to: 2
If an injury arises due to the actions of a healthcare provider, medical records can act as prime evidence to prove it. They can testify to: 3
Medical records provide the status and history of an individual’s health.
How you obtain medical records depends on the patient’s and providers’ consent. Without consent, you’ll need to show a compelling reason that records are necessary to prove a case and obtain a subpoena or court order.
The retrieval process can be complex and may include multiple rounds of requests to several providers to obtain the information needed during discovery.
Whether you’re requesting them with or without the patient’s and providers’ consent makes a major difference in the steps for medical records retrieval.
The simplest attorney request for medical records occurs when you have consent, such as in a personal injury case where your client has been injured by another individual. You’ll have your client submit a consent form to each provider to share medical records with you covering what’s needed for the case (date range, treatment, detailed notes, test results, etc.).
However, when you cannot gain consent, you’ll need to start with a subpoena or court order. A judge, magistrate, administrative tribunal, or grand jury must agree that the medical records in question are essential to proving your case, and that overriding the privacy rights of the patient and/or healthcare providers is necessary to serve justice.
A subpoena or court order may be needed to: 4
While most healthcare providers rely on electronic records, that doesn’t equal one-click access or a 24-hour turnaround. When patient consent is not an issue, steps may include:
Even with consent, the process may take weeks to complete due to administrative policies. Additional time may be needed if:
Partnering with a medical record retrieval company to retrieve medical records for a case can save significant time and resources. A medical record retrieval service partner can:
The largest challenge in retrieving medical records is the time spent tracking down information, remaining compliant with HIPAA and state laws, and accommodating multiple providers.
The Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides uniform requirements for the treatment of medical records. While HIPAA compliance for law firms includes a nationwide protocol on how to request them, it also:
As with many federal laws, HIPAA provides a nationwide baseline but does not prohibit individual states from offering additional privacy protection in the patient’s or provider’s interests.
There are 13 states with medical record legislation considered more strict than HIPAA. 5 This can affect record retrieval based on:
Even when the medical records are for your client, it may be a challenge to identify all relevant providers for a given condition or injury.
While a patient may recall what hospital emergency room they visited for an event, that’s only the start to tracking down all the providers with individual medical and billing records: hospitals and clinics, surgeons, general practitioners, specialists and consultants, emergency response and ambulance providers, physical and occupational therapists—the list can be long.
Obtaining records without patient consent can multiply this roadblock. You may find mention or suggestion of additional providers or referrals within one record that leads to new requests.
Getting the complete picture from each medical provider can also be a challenge. You may need to request in detail:
Reviewing each record may bring to light a new level of request needed to explore something like the scans and treatment outcome of a prior injury listed, in order to determine whether it’s a contributing factor or not.
Depending on the type of case and whom you represent, too much information may be just as challenging as too little, particularly when the patient in question is your client. This could include:
For nearly 30 years, U.S. Legal Support has provided top-notch, inclusive litigation support services including nationwide records retrieval, analysis, and organization.
By the numbers, our team works with a network of over 1.1 million providers, and obtains more than 27 million pages of records annually to fulfill over 400,000 requests—that’s one nearly every twenty seconds, every business day.
We’ll retrieve the records you need, when you need them, and provide secure transfer and storage compliant with SOC 2 Type 2 and HIPAA regulations.
Learn more today about our legal support services and how we can help with your litigation needs.
Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information.