Any lawsuit requires evidence. What kind will depend on the kind of lawsuit – financial records for a business-related case, breathalyzer results for a DUI case, or a weapon for a murder case, for example. If we’re talking about a personal injury lawsuit, there are several types of evidence that may be useful. An eyewitness to the accident could give testimony about what happened. An expert witness could explain that your injuries were likely caused by the person you’re suing. The precise nature and mix of evidence will depend on the specifics of your case, but there’s one type of evidence that nearly every personal injury case needs: medical records.
That seems easy enough – call the hospital and your doctors, get your records, and you’re good to go. Unfortunately, it turns out that getting access to medical records isn’t always as easy as it should be.
The Rules For Access To Medical Records
Your health information is extremely private and the law recognizes that. No one can get into your medical records without your consent. That’s the result of a set of rules called “HIPAA.” It covers your insurance provider and almost all health care providers and legally forbids them from sharing your health information without your consent.
That privacy is a good thing. We want to maintain control over our own private health information. By the same token, however, we also want to be able to access our own private health information when we want to. There are a number of reasons a person might do that, but one of them is to use those records as evidence in a personal injury lawsuit. Under a portion of HIPAA called the “Privacy Rule,” you’re entitled to receive and copy your health records upon request. Your insurer or health care provider is legally obligated to give you access under federal law.
Ohio law also backs up these federal rules and requires health care providers and insurance companies to provide you with a copy of your medical records if you make a written request. They’re also required to tell you if they’ve disclosed the information you’re requesting to anyone else within the past 2 years. Ohio Rev. Code § 3904.08.
Obstacles To Access To Medical Records
Unfortunately, it turns out that getting your medical records is often a lot more complicated than simply sending in a request.
Insurance companies and hospitals are large and complex institutions. Even if they’re running smoothly, a request for your medical records could take months to go through the bureaucratic process, and they’re often not running as smoothly as possible. So, the first problem is that it may take a very long time to get your records – and the statute of limitations that limits the amount of time you have to file a claim is ticking.
The timing problem is compounded because many hospitals, insurers, and other health care providers now outsource their medical records to third parties. Any request will then have to go through the hospital or insurer’s internal processes and then the processes of the third-party provider before you can get your records. In theory, Ohio law requires processing of your records within 30 business days of receipt of your written request. Ohio Rev. Code § 3904.08(A). In practice, it often simply takes longer and there is very little you can do to speed it up.
Next, the quality of the records may simply be bad. Many records are now computerized, but not all of them. That means you’re dealing with photocopies of doctors’ and nurses’ handwriting, which may be illegible or incomprehensible. Alternately, the quality of the copies may be so bad that it doesn’t matter whether they’re typed or handwritten – you just can’t read them. Again, that may be even more of an issue with a third-party provider. They don’t have much incentive to take high-quality copies.
Getting Your Records Can Be Expensive
Finally, you may have to spend a small fortune out of pocket for your records. Under Ohio law, you can be charged for every single page of the records you request. If your records include more than a few pages, that expense can add up quickly.
Under Ohio Rev. Code § 3701.741, you may have to pay up to:
– $2.74 per page for the 1st 10 pages of data
– $0.57 per page for pages 11-50 of data
– $0.23 per page for pages 51 and beyond
– $1.87 per page for x-ray, MRI, or CAT scan
– any postage incurred during the process
Not only do you have to pay per page, but you find yourself paying for copies of pages that are duplicated within your records.
The overcharging has gotten so bad in some places that class action lawsuits have been filed against care providers and third party medical records companies alleging that they’ve overcharged patients and shared kickbacks with the hospitals and other care providers involved.
How Can You Get The Evidence You Need?
As mentioned above, your personal injury case is going to depend in part on your medical records. Unfortunately, there isn’t much you can do to speed up the process, or make it more efficient – they’re required to give you copies within a reasonable amount of time but you can’t really force them to do it.
What you can do is start the process of filing your claim with plenty of time to spare so that you don’t start pushing up against the statute of limitations while you’re waiting for your medical records. You can also keep in close contact with your attorney about the progress of your request and about cost management – you may be able to dispute the costs of duplicative pages, for example. The current system for obtaining medical records isn’t perfect, but it is crucial to the success of your case. That means you and your attorney simply have to work with it.
Prior to forming Dyer, Garofalo, Mann & Schultz, Doug worked as a bodily injury claims adjuster for a large insurance company. This unique experience has been a tremendous asset to Doug in his fight to achieve maximum cash settlements for his clients in minimum time. Since departing from the insurance company, Doug has dedicated his entire legal career to helping injured clients when they need it the most.