Posted by Bill Sandweg on 25 February 2019.
With rare exceptions, there can be no claim for medical malpractice without the medical records. Juries give a lot of weight to the medical records. Pretty much, if it is in the medical records, the jury will believe it no matter what the patient says. The doctors and nurses who make entries in the medical records know this. For that reason, it is almost unheard of that a doctor or nurse will admit in the records that they made a mistake. Much more often, events involving malpractice will be described either incorrectly or with information about the malpractice just left out.
In spite of these limitations, the medical records are critical to any malpractice case and any lawyer representing you must have them. The most efficient way to get the records to a lawyer is for you to obtain them directly from the health care provider.
When someone comes to see me about a potential malpractice claim, I listen to their description of what happened but I cannot go further in investigating their case without the medical records. If the patient has not brought the records, I will have them fill out medical consent forms that allow me to request the records on their behalf. Sadly, many doctors and most hospitals slow walk requests for records that come from law offices. At the hospital, a request from a law office means that the chart in question will usually be sent to the Risk Management Office for review before being sent to the lawyer. The more blatant the malpractice, the more severe the injuries to the patient, the longer it seems to take the hospital to produce the records.
Then there is the problem of missing pages. With our years of experience, my staff and I can review a hospital chart quickly and determine if it appears to be complete. Often it is not. By way of example, some years ago I represented a young man who became paralyzed while in the ICU on the first night following spine surgery. He received substantial treatment at the hospital after the paralysis was discovered and his chart for the admission was nearly a foot thick. We were most interested in what happened in the ICU during that first night. After reviewing the chart, everything was there except the one page describing the nursing care on the first night following surgery. It took us over a month to get that missing page and, of course, it was the key to the case.
You have the right under the federal HIPAA laws to obtain your medical records directly from the doctor or hospital. The provider cannot refuse you the records on the grounds that you have not yet paid for the treatment. The provider cannot charge you for searching for or retrieving your records but can charge you for the cost of copying them. Don’t let them charge you an exorbitant price. The charge must be fair. If the records exist electronically, you can get the records on a disc. The cost of making the disc will usually be less than the cost of copying paper records.
You also have the right to correct your medical records. If you review them and find an error or an omission, you should send a written message to the doctor or hospital who created the record, describe the mistake or the missing information and ask that the record be corrected. If the provider refuses to make the correction, you have the right to have your statement of the mistake or omission added to the chart. They cannot refuse to add it.
If you think you have been the victim of medical malpractice and want to pursue an action, it will be very helpful to any lawyer you consult, if you get a copy of your records and give them to the lawyer for review. The lawyer may want to get a copy directly from the provider before filing the case, but your set will be helpful in assessing the case at the start. When you get the records, you should review them for accuracy and completeness. If you find any errors or omissions, you should correct them as soon as possible.