Unless a potential client presents with medical records in hand, the plaintiff’s attorney’s office considering obtaining records needs to be aware of the investment in time, money, and space. HIPAA-compliant authorizations must be executed, requests sent (and often re-sent), and fees paid. Some healthcare providers are notoriously slow in responding to requests, which requires the law firm to expend additional resources to follow up. It is therefore inefficient to request records until the potential value of the claim has been assessed.

The point at which a plaintiff’s attorney should request medical records depends greatly on the experience and medical knowledge of the reviewer. The great majority of claims:

1. can be determined to be without merit,
2. present insurmountable difficulties in proving causation, or
3. suggest damages insufficient to justify litigation, all based on historical information provided by the potential client with no, or minimal, documentation at hand.

Therefore, a thorough assessment of the above factors should be made before considering requesting medical records.

Ideally, the client interview should reveal whether or not the allegations, if supported by records, would present an actionable claim, and the potential scope of damages. At that point, it is reasonable to request records. In fact, however, several scenarios may exist:

1. First, the initial evaluation presents facts so clear that the attorney feels confident that the case is likely to go forward.
2. Second, the information at hand sounds promising, but specific records are needed to determine the extent to which deviation or causation can be proven.
3. Finally, some cases appear to be a “long shot,” where it seems unlikely that the necessary elements will be proven, but the injury is so serious (and, proportionately, the damages so large) as to justify the investment in requesting and reviewing the records. The reviewer should keep these scenarios in mind when deciding the scope of the initial request for records.

Read more about establishing damages and claims of frivolous lawsuits.

Modified from Peter Berg′e, Esq, “Attorney Use of Medical Records in a Medical Malpractice Case”, Patricia Iyer and Barbara Levin (Editors), Medical Legal Aspects of Medical Records, Second Edition, in press.

The Second Edition of this text will be released in March 2010. Want to save money by buying at the prepublication price? Send an email to ML@medleague.com and in the subject line type “Notify me Medical Records 2E.”