When faced with the need to obtain medical records concerning a prospective personal injury client, (i.e., one who is being seen for the first time, and whose potential claim is undergoing an initial evaluation), Plaintiff’s attorneys frequently must deal with what seems a time-consuming and inefficient process. Too often, the initial request for a treating physician’s medical records can meet with incomplete responses, too long in coming, at a cost which bears no obvious relationship to the task at hand. With regard, in particular, to the completeness of the response, the importance of receiving all of the physician’s records (i.e., not only those generated by the treating physician, but also by any consultants or prior treaters who have seen the client/patient in the past, etc.) is obvious: no attorney wants to file a claim or suit, only to find out later that the client has been less than “straight” with them regarding pre-existing conditions or injuries. Once the claim is brought, attempting to abandon it when the attorney later learns of such possible impediments to any recovery can be impractical, unethical, or both.

Promptness, too, can frequently be an issue, especially in instances where a statute of limitations expiration date is looming. In those circumstances, the attorney who wishes to obtain medical records concerning a client on whose behalf he or she is considering bringing a claim or suit requires a means to promptly obtain the complete record, again at a cost that is reasonably related to the size of the record being copied and sent.

From the standpoint, on the other hand, of the client/patient’s physician, it is useful to consider that a continuing source of frustration concerns the recurrent need for such health care providers to respond to records requests, (subpoenas, in this context, being inapplicable, since no “case” yet exits), issued in conjunction with potential claims for personal injuries. Whether such requests for information are received in association with the investigation of a possible medical malpractice claim, or in the less threatening setting of a potential claim of alleged negligence of a third party, (or, for that matter, with respect to administrative proceedings such as those involving workers compensation claims), the determination of how the physician ought to respond to such requests for information is often fraught with worry and uncertainty.

Another worthy consideration, in this context, is that among the overhead costs which cut into the “bottom line” of the average physician’s practice are those associated with the task of complying with requests for copies of patient records. Practitioners of the “learned professions,” and physicians in particular, today must operate their practices like businesses, with near constant attention to the bottom line being critical to continued existence, and requests for copies of patient records, whether the form of an actual subpoena or in the form of a request letter received from the patient’s attorney, do more than annoy: they represent another business expense that threatens the capacity of the physician to continue providing quality medical care to his or her patients.

Against this backdrop, it becomes understandable, if not acceptable, that such requests too often meet with delay, incompleteness, arbitrarily set copying fees, or some combination of all of these.

In recognition of these competing concerns, and in an effort to address them in a way that might allay them for both sides of the professional equation, a joint committee, comprised of members of the Genesee County Bar Association, the Genesee County Medical Society, and the Medical Society Alliance (formerly known as the “Auxiliary”), recently engaged in a year-long effort to fashion a “SAMPLE FORM FOR INITIAL (I.E., PRE-SUIT) REQUEST FOR MEDICAL RECORDS.” The final product, which appears below, was drafted with input from, and ultimately the official endorsement of, both the Genesee County Medical Society and the Genesee County Bar Association Board of Directors. In its conception, as well as in its proposed effect, the design of the “Sample Form” promotes the specific purposes of facilitating and expediting the process of initially evaluating personal injury claims, while at the same time initiating a respectful dialogue between the attorney doing the legal “evaluating” and the health care provider who has been involved in the process of medically evaluating the client. Further, although it is a “proposed” form, only, its joint endorsement by the GCBA and the Genesee County Medical Society demonstrates that it strikes an appropriate balance, in terms of the mutual interests that both professional societies have in seeing that the members of each are serving their client/patients to the very best of their ability.

To that end, it should be noted that the Sample Form, among other things, contains all of the following: (1) a statement that the attorney has been retained by the patient to investigate a particular type of claim, e.g., automobile negligence, premises liability, workers compensation, professional medical negligence, etc.; (2) a statement referencing an enclosed, signed authorization by the patient for release of the patient’s entire chart; and (3) a statement assuring the physician that reasonable copying fees and costs will be promptly be reimbursed.

The second and third of these features, as one might expect, generated no controversy whatsoever when the Medical Society and the GCBA Board agreed to endorse the Sample Form.¹ As to the first, however, the same cannot be said. Clearly, no attorney can, or should, be compelled to disclose the substance of confidential communications between the attorney and the client, and the GCBA Board of Directors, (some members more vociferously than others), raised objections to this portion of the sample form on the basis that, even if it did not directly implicate some violation of the attorney-client privilege, it nevertheless amounted to a disclosure which was “nobody’s business” but that of the client and the lawyer. In the end, however, after discussion was had concerning the idea that, simply because an attorney could not be compelled to disclose the type of claim being investigated did not mean that any good reason existed to withhold that information, a unanimous vote of the Directors present at the meeting endorsed the sample form with this provision included. Those Directors, it is believed, were persuaded that more prompt, complete, and sensibly priced responses to initial medical records requests will be forthcoming if the client=s physician is not forced to guess whether the request is, or is not, related to a possible claim for malpractice.

Essentially, identification of the particular type of claim being investigated was seen as a desirable act under most circumstances, not because the physician was entitled to know this information, but as a gesture which both served as a professional courtesy extended to the physician, and as an act of “enlightened self-interest” designed, again, to expedite a complete and sensibly priced response to the records request.

To these ends, and given the input and endorsements, respectively, of the Genesee County Medical Society and the Bar Association Board of Directors, it is respectfully urged upon the Genesee County area legal community that, except in circumstances where an articulable reason exists not to make use of the “Sample Form for Initial (i.e., pre-suit) Request for Medical Records” when initiating evaluation of a client’s potential claim, “if you try it, you will like it.”

Francine Cullari, J.D., Genesee County Bar Association

Peter Levine, Executive Director, Genesee County Medical Society

Cyrus Farrehi, M.D., Genesee County Medical Society

Ramona Sain, Executive Director, Genesee County Bar Association

Glenn M. Simmington, J.D., Genesee County Bar Association

Edward P. Davison, J.D., Genesee County Bar Association

MaryLou Mathias, Genesee County Medical Society Alliance

Harvey Olds, M.D., Genesee County Medical Society

John Kalo, J.D., Genesee County Bar Association

This entry was posted on Tuesday, April 21st, 2009 at 1:51 pm and is filed under Medical. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.