Obtaining Medical Records for Lawsuits

Do you need to obtain medical records for a medical malpractice, personal injury, or wrongful death lawsuit? If so, some important changes in the law may affect how you or your personal injury lawyer, like a Cleveland serious personal injury lawyer, go about obtaining those records, at least for the time being.

Before January 29, 2020, the HIPAA law provided that healthcare providers must make patients’ electronic medical records available to them at cost. This fee limitation resulted in significantly reduced cost of obtaining patients’ medical records when those medical records were needed for personal injury litigation purposes. Before January 29, 2020, a personal injury lawyer, acting as the representative of the patient, would simply send a HIPAA-compliant authorization to the healthcare provider, requesting that copies of the medical records be sent to the attorney’s office, along with billing for the medical records. The personal injury attorney would request that the records be sent in an electronic format, such as on a disk, which further reduced the cost of obtaining the records.

Medical Records for Attorneys 

However, on January 29, 2020, a federal court ruled that the HIPAA fee limitation for medical records requests would not apply when a personal injury lawyer requested the records directly from the healthcare provider. Most major hospitals use outside contractors to prepare and send medical records to requesting parties. Taking advantage of the federal court case, these outside contractors immediately began charging personal injury, medical malpractice, and wrongful death lawyers exorbitant charges for the cost of copying medical records. For example, the third party copy vendors might charge several hundred or several thousand dollars for copies of records that previously cost less than $10.00 to produce on a disk.

Restoring Regulations 

The backlash from trial lawyers was immediate and severe. As a result, the HIPAA regulation that requires fee limitations on third party medical records requests was recently amended to restore the status that existed before January 29, 2020. In other words, your personal injury, wrongful death, or medical malpractice lawyer can once again request your medical records to be delivered to their office, acting as your representative, and pay for the expense of obtaining those records at a reduced cost. However, this new regulation will not go into effect for approximately 60 days. In the meantime, personal injury law firms will have to follow new procedures to obtain their clients’ medical records for purposes of medical malpractice, personal injury, or wrongful death litigation.

 Requesting Medical Records

One procedure is as follows: when meeting with a new client, the personal injury, wrongful death, or medical malpractice lawyer will have the client sign both a letter and an authorization that the attorney will mail to the hospital’s medical records department requesting that medical records, and billing for those medical records, be sent to the client’s residence. The client would then advise the attorney when they receive the medical records. In some instances, even the reduced cost of medical records will impose a hardship on a medical malpractice, wrongful death, or personal injury victim, particularly one who has suffered a disability as a result of the accident or injury. In these circumstances, the lawyer can ethically reimburse the client for the cost of the medical records, while including that cost as a case expense to be paid at the conclusion of the lawsuit.

Fortunately, the current situation will be changed within the next 60 days, so that personal injury, wrongful death, and medical malpractice law firms will not have to go through these extra steps to obtain their clients’ medical records. 

Thanks to Mishkind Kulwicki Law for their insight into obtaining medical records for lawsuits.