Releasing Medical Records in Personal Injury

Why Are Medical Records Important in a Personal Injury Case?

Your medical records are the place where you start to prove the extent of your damages. If you believe you may have a broken arm, your medical records might show that yes, you have a broken arm. Proving that you got hurt in the accident is the first step towards a fair recovery.

In addition to recovering for your medical expenses, you might also use your medical records as a launching point to calculate non-economic damages like pain and suffering. You may rely on your medical records to document the severity of your pain and loss of normal use of your body. The files are an essential piece of the puzzle for documenting and calculating your injuries.

You Have a Right to Your Own Records

A lot of the rules for medical records come from the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This is a federal law that requires medical care providers to keep information private unless an exception applies.

The law also gives the states the power to determine the specifics about medical record privacy and allowing access in certain circumstances. Nevada law also provides a patient with the ability to keep medical information private.

You May Request Your Own Record

In Nevada, you have the right to request and inspect a copy of your own medical records. Nevada law 629.061 allows a patient to review their medical records within ten business days of making a request. You can also ask for copies. You must pay the cost of postage, and the provider can charge you up to 60 cents per page.

Can I Claim a Medical Privilege If I Don’t Want My Records Released?

In a personal injury case, the medical privileges in HIPAA and Nevada law aren’t the end of the story. When you bring a case, you’re putting your medical condition in dispute. You’re saying that you got hurt because of the actions of someone else. The other side has a right to investigate to determine if they agree with you.

The process of gathering evidence in an injury case is called discovery. The purpose of discovery is to help the parties find information relevant to the case. It also helps the parties narrow the issues at play. If the other side reviews your records and they agree with you, they may be more likely to offer you a fair settlement than if they’re kept in the dark.

Nevada law 49.245(4) says that medical records are fair game when they relate to “an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.” When you’re hurt in a personal injury, your physical condition is an element of the claim. That means the other side can demand to see the relevant medical records as they evaluate your claim.

What If They Want a Blanket Release for All of My Records?

Too often, the other side tries to use the privilege exception in order to insist on reviewing all of your medical records. They might even send you an intimidating blanket release that asks your medical providers for all of the files that have ever existed for you even years before your injury. Fortunately, Nevada law stops far short of allowing the other party to get away with this kind of harassment.

Pre-Existing Condition

The other side might want earlier medical records to investigate the possibility that you had a pre-existing condition. They might try to find earlier records that would make it seem like some or all of your injuries existed before the accident.

Related: How Pre-Existing Conditions Affect Your Injury Claim

While they’re allowed to ask for documents relating to a pre-existing condition if they have a reason to believe it might exist, they’re not allowed to just ask for any and all medical records you might have that are unrelated to the nature of the claim. The legal term for requesting records without a good reason is called a fishing expedition.

Objecting to an Overboard Request

If the other side is on a fishing expedition, you can object to their discovery demand. Rather than provide the answers to their request, you state that the information is privileged and the reason why. The courts must strike a balance between allowing them to collect information relevant to the case while protecting you from harassment.

The court might require you to list dates of medical treatment and whether the treatment related to any of the same body parts or functions as your medical treatment for your injury. The court might limit the discovery of your medical records to specific topics. You can work with your attorney to file the appropriate objections and request the court to rule on the issue.

Independent Medical Examination

Finally, the other side might ask you to submit to a medical evaluation by a person of their choosing. Most of the time, this is a physician that regularly works with the insurance company or the defense attorney.

It’s typical for the person doing the evaluation to predictably take the side of the person that’s paying the bill. While you can’t say no to the examination, your attorney can help the jury see the examiner’s bias.

How an Attorney Can Help

Defendants in injury cases often request too many medical records in an effort to embarrass or intimidate you. Adam S. Kutner, Injury Attorneys can help you maintain the right balance of what’s required and what could be considered overboard.

In addition to helping you keep your private medical information private, they can help you explain to the jury why the other side’s medical examination isn’t an accurate picture of your losses and damages. They can also help you use your own medical records to arrive at an accurate assessment of your economic and non-economic damages.