Releasing Your Medical Records in a Personal Injury Case

Medical records play a key role in any personal injury claim. In most cases, both sides will get access to all the plaintiff's relevant medical records.

Medical records are the focus of many personal injury cases, since the claimant or plaintiff is seeking compensation for injuries ("damages") from the at-fault person or business.

Where the injured person sought medical treatment for physical injuries, the hospital or treatment center will have records of all treatment and medical bills. And at some point in the claim or lawsuit, the injured person or the "other side" (the at-fault person or business) 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.

Authorization for Release of Medical Records

In many cases, you can draft a request for release of medical records. In the request, you must include certain personal information including the patient's name, social security number, date of birth, patient account number, patient's address and spouse's name. You should also specify whether you want specific records, records during a certain date range, or simply all records. In many states such as Florida, 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 the records if you give written permission that is signed and dated. The requests can be faxed or sent via regular mail. It is advisable to call the medical provider to confirm receipt. Many medical providers charge a fee to release the records and for postage. 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 battery case, 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.

Privacy Concerns

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 Florida 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.

Reasons for Releasing Medical Records

There are several advantages to having all medical records relating to a personal injury case:

  • It allows both sides to assess the physical injuries and the viability of a particular case;
  • It provides proof of physical injuries;
  • It helps to calculate damages sustained by the injured person;
  • It allows a medical expert or medical profession to analyze the records to determine the cause of the injuries or, in a medical malpractice case, to determine whether doctors exercised reasonable care; and
  • It helps the alleged at-fault person avoid paying for preexisting injuries.

For example, a person is injured falling into a sink hole outside a grocery store. The grocery store may want to obtain the injured person's medical records. The grocery store may have reason to believe that the person sustained the injuries in a bicycle accident half a year before the sink hole incident. In this case, an authorization to release medical records may be denied based on privacy concerns. Therefore, the grocery store can draft and serve the medical records subpoena on the injured person's medical providers. The injured person may claim that the records are protected by physician-patient privilege. However, this claim will likely fail because the injured person waived the physician-patient privilege by pursuing a lawsuit and placing their health and injury history at issue.

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