Obtaining Medical Records in Medical Malpractice Cases

A medical malpractice claim is based on an alleged injury to a patient, and the patient's medical records are needed to either prove or disprove the claim. Early in the case, it is often wise to obtain all medical records, including those of prior illnesses and injuries, even if they do not seem relevant to the claimed injury. Numerous hospitals, clinics, and physicians may hold these records.

Although the hospital, clinic, or physician owns the medical records in its possession, the patient to whom the information pertains has the right to access the information contained in the records. In addition, the medical records can be accessed by various third parties, including third party payors, governmental agencies, subsequently treating physicians, research groups, and other interested parties by subpoena or court order. Generally, a patient must give his or her consent to allow third parties to access the medical information.

The laws of each state determine the degree of privilege or confidential status given to a patient's medical records. Most states allow a patient to access his or her own records, with some potential limitations if the person is an inpatient or if the treating physician believes that disclosure could be harmful to the patient. Under those circumstances, access is generally provided to a third party designated by the patient.

Some states permit the release of patient records without consent once the patient has filed a medical malpractice action. However, the voluntary release of confidential or privileged information without patient consent that is not authorized by a state statute may expose the healthcare provider that released the information to liability for a violation of privilege. Due to this liability risk, many hospitals, clinics, and physicians establish strict procedures for the release of medical records and refuse to do so without patient authorization, subpoena, or court order. Some healthcare providers require authorization on their own forms, and often a photocopy is not acceptable. Some institutions will not accept "stale" authorizations, which may be as recent as one month.

A physician forced to defend him or herself against a claim of malpractice may not be able to obtain consent for medical records directly from the patient who filed the action. Instead, the physician may have to request patient authorization forms through a Request for Production of Documents according the court rules of the state. If the state statutes do not provide for a release of the records, the physician may subpoena the records or seek a court order mandating their production or the patient's authorization. It is unlikely that a court would deny this request after the patient put his or her own health into issue. However, there may be a dispute over the extent of what constitutes "relevant" medical records.