If asked for your records in a lawsuit, be prepared

June 25, 2011

What do you do if you realize that your records actually may do harm to a patient's lawsuit?

Instances in which your records may damage a patient's lawsuit case could occur in various circumstances. Maybe your patient is suing other doctors for malpractice and your records reflect that you did not concur with the prior treating physician's diagnosis or course of treatment. Or maybe in a personal injury lawsuit, your records show that the patient was not really injured and, therefore, the damages were small. Yet another possibility is that you were a prior treating physician and your records indicate the diagnosis and treatment of a pre-existing condition. Maybe those are exactly the damages that are being claimed in the lawsuit. The records then would show that all or some of the damages claimed were not the result of the current tort and would limit the amount of any recovery for the patient.

In a recent unreported case, a patient's car was rear-ended in a motor vehicle accident, and the patient sued the other driver, claiming damages of whiplash, headaches, back and neck pain, emotional pain, and other psycho-neurologic disorders. The doctor's records went back many years. They reflected that the patient complained of headache and neck and back pain and was treated with pain medication and referrals to an orthopedist and a psychiatrist-and that the patient had been seeing a chiropractor for years.

What follows is a series of questions asked by the doctor in the aforementioned case. You might ask these questions as well if a patient/plaintiff's lawyer or defense attorney requests your records.

Can I ignore the request or refuse to send the records?

Make sure the patient has signed a Health Insurance Portability and Accountability Act-compliant authorization form. The patient must waive the doctor-patient privilege for you to have the legal right to send the records. If a valid authorization exists, then you may as well comply.

If you do not send the records, then the lawyers indubitably will ask the judge to order the release of the records during the process of discovery. Courts routinely grant such motions because they want all the evidence to be available. Not responding to a court order would put you in contempt of court. So you may as well release the records when the attorney requests them.

If the patient or the patient's family is equivocal and tries to rescind the authorization, or if they threaten you with lawsuits or bodily harm, however, then it may be safer for you to wait for the judge to order the release. The judge has judicial immunity, and his or her order will have the force of law. A court order, in other words, can buy a little immunity for a doctor in touchy circumstances.