When you file a personal injury claim, one of the first things to understand is that your medical records (and your medical history) are going to be a main focus, since you're essentially asking for compensation for injuries ("damages") from the at-fault person or business.
Any hospital or health care facility where the claimant sought medical treatment will have records of the care provided, and the cost of that care. And at some point in the case—especially when a personal injury lawsuit is filed—the injured person or the "other side" (the at-fault person or business, usually through an insurer or attorney) will want to acquire those medical records. This article explains how an authorization for release of medical records works, and why a medical records subpoena must be served on the hospital or treatment center in some situations.
If you've decided to sue for personal injury, your attorney will almost certainly ask you to authorize the release of your medical records.
This request will typically include the patient's name, social security number, date of birth, patient account number, and the patient's address. It may also ask for specific records, records during a certain date range, or simply all records in the care provider's possession. In some states, the request must include the law or statute that allows the release of medical records to patients or authorized third parties.
Your attorney can request your records on your behalf if you give written permission that is signed and dated. The request can be sent via regular mail or fax, and many larger care providers allow patients to request records through an online portal. If you mail or fax the request, it's usually a good idea to call the medical provider to confirm receipt. Many providers charge a fee to release records, and to cover postage when they mail the records out. Depending on the medical provider, you may be required to pay the fee before the records are released.
A request for release of medical records may be denied. One reason for denial is lack of patient consent. For example, in a civil lawsuit over assault and battery, the person being sued may want to obtain the injured person's medical records to use in court proceedings. The alleged batterer may try to request the release of medical records. The doctor's office can deny the request. At this point, a medical records subpoena may be pursued.
Each state has specific standards for acquiring medical records for a legal purpose. When drafting a medical records subpoena, you must be aware of state laws and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements. For example, in Florida, both the HIPAA Privacy Rule and state law give you the right to access medical records. The HIPAA Privacy Rule sets standards for records across the nation. Florida law sets standards for records for providers within the state. Where HIPAA and Florida law conflict, the most protective rule or law controls the situation.
There are several advantages to having all medical records relating to a personal injury case:
Pre-existing injuries. Another big reason for accessing and reviewing medical records is that it helps the at-fault person understand the claimant's preexisting injuries.
For example, let's say the claimant was injured falling into a sink hole outside a grocery store. The grocery store may have reason to believe that the claimant merely aggravated an injury suffered in a bicycle accident six months earlier. In this situation, an authorization to release medical records may be denied based on privacy concerns. So the grocery store can draft and serve a medical records subpoena on the claimant's medical providers. The claimant may believe that the records are protected by privacy laws, but the claimant waived the right to privacy for relevant medical records by pursuing a lawsuit and placing their health and injury history at issue. Learn more about what to expect in a personal injury lawsuit.