Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

When a lawyer wants a patient's records

Q: A plaintiffs' attorney has requested that I forward a patient's records to him, and he included the patient's signed authorization. What can I do to defend myself? What will the attorney do with the records? How long will I have to worry about this? On average, what percentage of patients who contact an attorney actually have a case go to trial?

A: First, notify your insurance carrier about the request as soon as possible, and don't send any records until the insurer agrees. Reporting a potential claim before any lawsuit is filed allows the company to start an investigation and take your statement for future reference. That's key because relevant details tend to get fuzzy over time.

Second, until you get the okay to send a copy of the records, store them in a secure place. Many insurers recommend that you keep them in a locked file so no one can alter or copy them. Some disgruntled staffers have been known to sell records to attorneys.

Carefully review the case with your insurer. Determining whether you may have erred is always a challenge and calls for objectivity. Virtually every record contains some entry that raises the question of whether something could have been done better or differently. Ask yourself whether the treatment records could be turned against you in any way. Your insurer will likely have an independent physician review it as well.

While doing your own review, resist any temptation to "improve" or "clarify" the records. The patient's attorneys have most likely already made copies. Any change is likely to be discovered and would appear self-serving at best. Jurors are particularly tough on physicians when records have been altered. No matter how innocent your intentions, it will look like a coverup.

Although the attorney's letter is upsetting, try to take some comfort in the fact that the odds are against a lawsuit. Successful malpractice firms usually say they accept only one in 20 patient complaints after listening to the patient and reviewing the records. Even if you did something wrong, the potential damages may be too small for an attorney to think the case is worthwhile.

What if you are sued? The odds are that there won't be a judgment against you. More than 70 percent of malpractice cases are closed with no indemnity payment to the patient, according to statistics compiled by the Physician Insurers Association of America. When cases go to a jury trial, physicians win more than 75 percent of the time.

Once your insurer gives you the go-ahead to release the records to the plaintiff's attorney, he'll likely have a nurse who works for the law firm review them. If she thinks the patient's complaint has merit, the firm will turn to a physician they're comfortable with to review the records and offer a verbal opinion. If the attorney wants to pursue the case, he'll locate expert witnesses in the relevant specialty.

You can help protect yourself by doing some medical research on the relevant issues and the important specialists in the field. You can help your assigned counsel learn the medicine and select your experts. If you know of an expert who favors your particular mode of treatment, ask your counsel to contact him.

As for how long you'll have to worry about the possibility of suit, in most states, the statute of limitations runs about two to three years from the last date of treatment. You can be sure the plaintiff's firm is aware of the claim's "expiration date," and it's not uncommon for a suit to be filed in the 11th hour. So you may have to wait and worry for a while. Even though the odds are in your favor, get ready for the bumpy ride of litigation.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;22:91.