Managing the Defense’s Access to Your Client’s Medical Records

August 21, 2014

The most common complaint or concern we hear from our clients is the lack of privacy they are allowed once they decide to file a claim. It is bad enough for them to know that we have access to such private and personal information, but to be required to allow access of that information to complete strangers who are looking to use that information against them can be even more unsettling.

While we cannot prevent reasonable access to their medical records, we can take certain steps to limit the defense’s access where possible. Additionally, it is not our goal to hinder the ability of the defense to accurately evaluate our clients’ claims, but it is up to us to attempt to keep them within the boundaries of what is truly relevant to the claim and not to allow fishing expeditions.

My first and foremost advice with respect to release of our clients’ medical records is to have a game plan worked out with your entire team (attorney, paralegal and legal assistant). Know the position you will be taking as far as:

(a) which providers you will give them access to;

(b) time period to which they will have access to, and

(c) the types of records they will have access to.

Having the entire team on the same page is critical to ensure a standard procedure is in place and helps to keep the process running smoothly with minimal problems.

In our practice, we have two different sets of rules: one for pre-suit cases and one for cases in suit.


Pre-Suit Cases

For pre-suit cases, we do not as a general rule allow the liability carrier to have a signed medical authorization from our client. I will provide any and all records in support of our claim, including any pre-accident records requested. With respect to pre-accident records, we will obtain copies of medical records for two years prior to the subject accident, and will provide copies to the liability carrier. In some cases, we will go up to five years pre-accident if there is indication in the post-accident records of relevant pre-accident history.

With respect to medical payments carriers, we will allow them a signed medical authorization, but for the date of the accident forward only. Again, there are occasions where we do need to make an exception and will provide limited pre-accident records to the medical payments carrier directly.


Cases in Suit

For cases in which suit has been filed, I initially review the proposed defense authorization to be sure it is HIPAA compliant. If it is not, I will alert the defense attorney to the issue and ask that they provide a HIPAA compliant authorization. We have had countless cases where the defense repeatedly requests that our clients sign new authorizations because theirs is rejected for one reason or the other. This can cause unnecessary anxiety for our clients, not to mention an inconvenience to us and our client. If you know a certain provider is not going to accept an authorization in a format being presented, a simple phone call or e-mail alerting the defense attorney to this can save unnecessary hassle for the client, the defense attorney, and yourself.

Once I feel the authorization is HIPAA complaint, I will insert the following limitation directly on the authorization: THIS AUTHORIZATION IS LIMITED TO THE RELEASE OF THE REQUESTED INFORMATION FOR THE PERIOD OF (DATE TEN YEARS PRIOR TO THE DATE OF THE ACCIDENT) THROUGH (DATE ONE YEAR AFTER SIGNATURE DATE). We have been told by many healthcare providers the best location of this is near the signature line. If that is not possible, be sure your limitation stands out, so when it is submitted to a provider, they can clearly see the limitations. On occasion, we will get an authorization that allows no room for placement of the limitation. In that case, I will either request a new one from the defense or get creative to be sure the limitation makes it on the authorization. I do not ever allow an unlimited medical authorization to go to a defense attorney.

There was a time when defense counsel believed they were entitled to a claimant’s entire medical history. While defense counsel likely still believe that to be true, over the years, and with a lot of pushback from the plaintiff’s bar, it appears we have reached a level of compromise at ten years of pre-accident medical records. We do still occasionally run into a defense attorney that will push to go beyond ten years pre-accident, and, in most situations, we will require an order from the court prior to complying with those requests. However, there are some rare situations in which we will concede to expanded records if the circumstances warrant. You most certainly need to pick your battles.  If you believe it is likely the court will allow the expanded set of records, then you are not doing your client any favors in forcing a motion unnecessarily.


After Signing the Authorization

Once the client signs the authorization, I forward the originals to the defense attorney and specifically request that they abide by the limitations on the authorization, as well as provide us with copies of any and all records obtained through the use of all authorizations provided. I also follow-up my request for copies of the medical records once our client’s deposition has been scheduled. At that time, I request that all records be provided no later than two weeks prior to the client’s deposition. If the medical records are not provided within that time frame, we will cancel the deposition and reschedule it once the medical records are provided. We are responsible to cover the reasonable copy charges for any medical records requested from the defense attorney.

Also, when sending medical authorizations to defense counsel, it is a good idea to include language in the cover letter asking that they include language in their request letter to providers which draws attention to the limitations on time and subject matter of the authorizations. Many of the medical providers are now contracting out release of medical information to independent services whose employees are not always diligent in reviewing the authorizations to identify the limitations in place. Having the limitations brought to their attention in the request letter improves the odds that the medical records providers will ultimately comply with the limitations.


Special Attention to Psychological Issues

Special attention needs to be paid to claims involving psychological issues, or with clients that have highly sensitive psychological histories.  When a claim involves psychological issues, it is critical to have a plan in place on how those records will be dealt with, especially on what access will be allowed to the defense counsel. In these situations, we will obtain the psychological records (pre- and post-accident as is applicable) and review them to see what information is there, so we can determine what we should or should not allow the defense access to. Once we have had a chance to review the records, the attorney will discuss the records with the client and come up with a plan moving forward. In the event a motion is filed to compel access to those records, we will voluntarily suggest that we provide them to the court for in-camera review, so the court can decide whether they need to be turned over to the defense or not.


Contracting with a Medical Records Retrieval Service

This brings us to a new craze that we are seeing. Many insurance companies believe they can save money by contracting with a medical records retrieval service versus allowing their attorneys to obtain medical records. Lately, in response to my request for copies of defense records, I have received notices from a medical records retrieval service directly, which quotes exorbitant charges for obtaining copies from them directly. One such quote was for 5 pages at a cost of $25.00. In response, I have contacted the defense attorneys and they have been amenable to my request that they simply send their records to a copy service at my expense. Thus far, I have not received any pushback. We are entitled to reasonable copy charges, and to this point, the copy retrieval services have not proposed reasonable fees. I can imagine that in the not so distant future, we will start seeing related motions popping on, and at that point, we may get more of a definition on what is considered reasonable.


Closing the Case

I have recently adopted the practice of contacting defense counsel at the close of each case and requesting that our clients’ medical records be shredded, or that I be allowed to have them so I may see that they are shredded. Clients tend to feel better when they know their medical records are not just floating around some random legal or insurance office. In an effort to reduce the amount of paper taking up expensive storage space, most counsel have been quite receptive to this request.

Ultimately, we need to do what is in the best interest of our client. That usually entails simply coming to a compromise with defense counsel and resolving these issues amongst ourselves without requiring the court to get involved. In fact, in the past five years, I believe we have only had this issue come before the court on one occasion. In some situations, however, it is necessary to bring the issue before the court to make that determination, and we need to be willing to do so when warranted. Most situations can be resolved between counsel, and that is definitely the preferred route when possible.

This article, written by Senior Paralegal Elaine Jensen, was originally published in the Summer 2014 edition of The Verdict and modified for our website.

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For more information about "Managing the Defense’s Access to Your Client’s Medical Records," contact Elaine Jensen at ejensen@axley.com or 608.283.6745.