Several factors should be considered by a plaintiff’s attorney when deciding which records to request while evaluating a potential medical malpractice claim. They include the likelihood that the attorney will pursue the case, the volume (and potential cost) of the records and the available resources (whether those of the attorney or the client) to pay the cost, and the nature of the information that will be required to establish the viability of the case. Be aware of any state-specific laws that regulate what the provider may charge to supply a copy of the chart.

When a specific deviation or a particular type of deviation is alleged or suspected, the reviewer must be familiar with the materials that will be needed to thoroughly assess the claim. If a failure to screen for colon cancer is alleged, for instance, the chart of the primary care physician may be sufficient to reveal the deviation and—if it contains reports from the surgeon and oncologist—to assess causation and injury as well. In cases of delayed diagnosis of breast cancer or negligence in interpretation of prenatal ultrasound studies, it is likely that original images of the diagnostic study in question (such as mammography, breast ultrasound or fetal ultrasound) will be required.

When in doubt, the reviewer should consult with the expert who will ultimately be asked to certify or otherwise assess the validity of the claim or the expected testifying expert or experts. The facts of each case will determine whether full certified copies of all records are needed, or whether abstracts may be sufficient. Full certified copies of medical records relating to where the alleged medical malpractice occurred are needed to complete an evaluation of the merits of a claim.

Another factor for plaintiff’s counsel to take into account is whether or not there is a short statute of limitations. When there remains less than six months to investigate a claim, it may be prudent to err on the side of a wider scope of record requests rather than requesting them piecemeal, except when the expected testifying expert is very clear about what would be necessary to provide a definitive opinion as to deviation and causation. A liability expert will have limited need to review voluminous medical records for care rendered after the care alleged to be negligent. A discharge summary may suffice.

A host of records may be relevant in a specific case. Depending on the circumstances of the claim the attorney should examine

• hospital, emergency room, or emergency center records where the injury was initially treated,
• emergency medical services records (ambulance or medical intensive care unit/MICU),
• hospital records that relate to treatment and surgery,
• records of physicians and specialists who examined or treated the plaintiff before and after the incident,
• outpatient imaging (x-rays, MRI scans, CT scans, and so forth),
• any outpatient labs where blood work or other tests (EMG, EKG, and so forth) were done,
• inpatient and outpatient rehabilitation records including physical therapy, occupational therapy, and so forth,
• outpatient pain treatment centers,
• the actual radiographs and reports that relate to the injury,
• the actual pathology specimens and reports that relate to the injury,
• billing records,
• visiting nurse home care records,
• mental health, substance abuse records and HIV records,
• autopsy report, and
• nursing home records.

Modified from Patricia Iyer and Jane Barone, “Obtaining and Organizing Medical Records”, and Peter Berge, “Attorney Use of Medical Records in a Medical Malpractice Case”, from Patricia Iyer and Barbara Levin, Medical Legal Aspects of Medical Records, Second Edition