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When Do You Get Medical Records for a Potential Medical Malpractice Case? based on a chapter by Peter Berge Esq.

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When Do You Get Medical Records for a Potential Medical Malpractice Case? based on a chapter by Peter Berge Esq.

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Attorneys should think twice before ordering medical record retrieval

Attorneys should think twice before ordering medical records

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 resent), 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. Med League provides medical record retrieval service to free up your law firm’s time.

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 Medical Legal Aspects of Medical Records, Second Edition

Med League is a legal nurse consulting firm that assists attorneys handling cases involving medical negligence, personal injury and other litigation with medical issues at stake. Call us for assistance.

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