The first step in almost any personal injury case is to obtain copies of all your medical records.  This step is doubly important in medical malpractice cases, where your medical records are the critical pieces of evidence in your case.  (There is a saying in medmal… “If it wasn’t charted, it didn’t happen”).  This task should be easy, after all you are entitled to see a full and complete copy of your medical records right?  Unfortunately it is not.  I am writing this article with the benefit of having defended hospitals and nursing homes in the beginning of my career with one of the most prestigious medical malpractice law firms in Atlanta, so I know firsthand how it is done right and what can go wrong.

Know your Rights
You have the right under the federal law called HIPAA (pronounced “hippa” and standing for Health Insurance Portability and Accountability Act) to see, copy, and even amend your own health information.  This law also protects the privacy of your health information.  Chances are you have signed a long form at your doctor’s office that sets out how your doctor is protecting and/or sharing your health information.  Most health care providers must follow HIPAA and their State’s privacy laws.  You normally have the right to:

• See and Copy your Medical Record.  The facility usually must provide the record within 30 days of the request.  I strongly suggest you document your request in writing.  The easiest way is to ask the provider to give you their form or to tell you their specific procedures.  If they do not have a form, you get a copy of the HIPAA form I use for my Georgia personal injury clients.  In Georgia, your provider is allowed to charge you for copying your records.  As of July 1, 2005, you can be charged 93¢ per page for the first 20 pages; 80¢ for the next 80 pages; and 63¢ for every page after 101.
• Correct your Medical Record, otherwise known as the right to amend your medical record.  Under HIPAA, you can request to change inaccurate information or add missing information.  If the provider denies your request, you have the right to enter a short statement to your file that explains your position for the request.

If you feel your health provider did not honor any of the above rights, you may want to consider filing a complaint with Office of Civil Rights, Health & Human Services and/or your State’s board(s) responsible for certifying doctors and medical facilities– in Georgia they are the Composite Board of Medical Examiners and the Georgia Department of Human Resources.

Getting Records When Things Go Wrong
Unfortunately the doctor or hospital will know before you do that they made a mistake.  Hospitals and other medical facilities have a whole department known as Risk Management to deal with their mistakes.  Risk Management will usually document the incident and then flag your file.  This means that when a record request comes in, they are immediately thinking law suit.  I would like to give the benefit of doubt to doctors and hospitals when it comes to full disclosure, but my practice has taught me otherwise.  I never saw intentional withholding of medical records when I was on the defense side of personal injury litigation, but that does not mean it does not happen or that there are not those hospitals and lawyers who stonewall.

What I did see was an alarmingly high rate of missing records, especially in nursing home cases.  Much to my former law firm’s credit, when we thought records were missing we would send a team of attorneys and paralegals to go through all the other patients’ charts to find misfiled records, which we routinely did.  It is up to you and/your attorney to strategically apply pressure to force the defense and hospital to spend the time and resources to locate the document.   They are not going to do it unless you force them to.

Another dirty trick for medical records is “wrecking” charts.  I have known some attorneys who will mix up the pages in a person’s chart to force the other side to go page-by-page to reorganize the chart.  I have also read reports of facilities darkening, fading out, enlarging or shortening copied records to obscure information.

If you are reading this because you are concerned you or a family member may be the victim of medical malpractice, you need an attorney ASAP.  Time is your enemy.  There are statutes of limitations that will prevent your claim if you wait too long, something the wrongdoer wants you to do.  You absolutely need an attorney to request the records on his/her letterhead and, more importantly, who has the experience or staff (i.e. certified nurses) to organize and review the documents quickly to determine what is missing.  The average person simply does not know what is supposed to be in their medical chart or how to cross-reference the documents in their chart to identify missing information.

*I say say usually because I would like to believe people do not lie in these records.  Also, this statement requires there actually be a notation in the record.  A lot of times it is the omissions or things left out of the medical records that are the most important.