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Legal How-To: Getting Medical Records for Your Case

By Brett Snider, Esq. | Updated by Melissa Bender, Esq. | Last updated on

Medical records may be the foundation of your injury claim or the linchpin of your defense in a legal case. But getting medical records for your lawsuit can be difficult.

The following steps will help you obtain sensitive medical documents and give you peace of mind you've done all you can to make the best case.

Request Documents From the Medical Provider Directly

Often in the case of a serious injury, the medical records are kept electronically by a hospital or surgical clinic. They are generally protected from disclosure by the Health Insurance Portability and Accountability Act (HIPAA). HIPPA limits who can access your health records and other protected health information to protect patient privacy. You can designate additional people, such as a family member, who can access your records. Otherwise, the doctor’s office won’t share information with anyone but you.

A copy of your medical records and personal health information can typically be requested from your care provider’s patient portal. Even if they are your own medical records, you may have to sign a medical records release form or make a written request. Most hospitals will also have their own procedure for a former patient requesting her records (here's one example from a San Francisco hospital), and they may charge you a fee per page to obtain copies.

Use Discovery to Obtain Medical Records From the Other Party

If you are the defendant in an injury or medical malpractice case and you would like to know the extent of the plaintiff's injuries through their medical records, you can get them through the discovery process.

Through discovery, each party is entitled to documents that are relevant to the legal claims and defenses in the case.

You may make a "Request for Production" (RFP) from the other party for their records, but if they deny you, you may need to use a subpoena. A subpoena is a legal document from the court that requires an entity or person to provide specific documents, photos or other records.

Subpoena Medical Records From Providers

It is fairly common for medical records not to be shared easily in a civil suit. But you can use the power of the court to request that certain documents be brought to court.

This allows you to request that the medical provider's custodian of records deliver medical records to the court. After the court reviews them for possible protected material under HIPAA, either party may inspect or copy them.

The other party to the civil suit may attempt to quash the subpoena for privacy reasons, but if it is specific enough in scope, judges are inclined to allow the subpoena. The only exception may be mental health and psychotherapy records which may have additional protections associated.

Need More Help?

Laws about patient medical records are complicated, and those representing themselves in court often face obstacles in obtaining them. That's why it may be best to contact an experienced personal injury attorney familiar with HIPAA regulations in your state to get a clearer view of your options for getting medical information from healthcare providers.

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