Medical Records and Reports in Medical Malpractice

One of the first things that any medical malpractice lawyer will ask prior to filing a personal injury or wrongful death lawsuit is the medical records of the patient in question. Most personal injury lawyers take on only cases that has a good chance of being won because they work on a contingent fee basis, and in a medical malpractice lawsuit, the records are the key element to prove negligence. State laws on the confidentiality of medical records and relevant reports differ, but they are generally discoverable. In Kentucky, for instance, a recent state Supreme Court ruling established when certain medical documents are considered confidential under federal law i.e. Patient Safety and Quality Improvement Act of 2005. Specifically, the defendant hospital claimed that they could not release the post-operative incident report concerning the fatal surgery that claimed the life of the patient because it was prohibited by federal law. The Kentucky Supreme Court ruled that the report in question was part of the hospital’s regular reporting and discoverable under state law, and that the federal law was not intended to intervene in the state regulation of healthcare facilities. In Massachusetts, the medical record rights of the patient under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule and state law include the right to:

  • See and obtain a copy of your own medical records
  • Amend medical records to correct inaccuracies
  • File a complaint for violation of these rights

When a Massachusetts medical malpractice lawyer asks a potential client to obtain their medical records, the healthcare provider may not refuse, and generally should comply within 30 days, although delays are common. The client also has the right not to disclose the reason for the request to obtain a copy of the medical records because this is an absolute right. If you are planning to file a medical malpractice lawsuit for yourself or an immediate family, make a preemptive strike by obtaining the relevant medical records immediately. This will save a lot of time and effort for both you and your medical malpractice lawyer.

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