In the world of law, everyone knows that at the end of the day, a case’s merit relies on evidence. In personal injury, that evidence is typically found within medical records. Law firms worldwide engage in record retrieval, whether they outsource it, house a records collection department, or make it part of a legal assistant’s duties. Regardless, the desired outcome is the same: To discover the facts necessary to successfully pursue or defend a case.
Tell Your Client’s Story with Different Records
Undoubtedly, various types of records are key in every personal injury case. Medical records are typically ordered to obtain evidence concerning the party’s injuries and past and future medical treatment following an injury. Sometimes, in medical device or pharmaceutical cases, medical records can actually capture the exact manner in which an injury occurred. They can provide crucial evidence such as a tortious product ID or an error during a medical procedure. Pharmacy records provide evidence of medications taken in a pharmaceutical case, as well as medications prescribed due to the personal injury. Medical billing records provide evidence of the cost of a plaintiff’s treatment.
Employment records are ordered for a few reasons. If the injury occurred on the job, obviously those records would provide a wealth of information about the plaintiff’s work habits, prior injuries, and more, for both parties. If a plaintiff is claiming lost wages, employment records prove income, plaintiff work attendance and behavior, and possible prior injuries. Other types of records that may be necessary include income tax, supplemental security income (SSI), social security disability benefits (SSD), health insurance, and Medicare records. They too can provide evidence showing past income, injuries, and bills paid due to injury.
Determine the Scope of Your Inquiry
Although records do contain the necessary elements to prosecute and defend personal injury cases, the information obtained from the records is only as good as the requests for information that are sent. It may be tempting to prepare a blanket order for “everything” early in the discovery phase of a case so that you have a clear picture of the case before you move forward. However, most medical facilities have hefty custodial fees and per page prices for their records. Hospital records can be voluminous, especially in a catastrophic case and can easily reach over $1,000 for just one set of records. Obviously, ordering an unlimited number of records before you know whether your case has merit, is not good business practice and can easily increase overhead.
Determining the scope of the desired information is the first step to getting the most relevant information necessary. Depending on the type of case, that scope must be determined early on to ensure a successful and fluid process. Regardless of the tort type, whether it be car accidents, defective medical devices, on-the-job injuries, or bad drugs, attorneys from both the plaintiff side and defense will go through the process of securing and scouring the records to find the evidence necessary to back the plaintiffs’ claims or defend the case. Narrowing down which facilities and time frames from which to order records is an important step in securing the information you need without spending too much money before you know your case has merit.
Keep in mind your desired scope will likely change throughout the course of a claim. Initially, for smaller claims or claims where negotiations may have already begun, ordering simple proof of injury, product usage, or device implantation records might suffice. However, after a lawsuit is filed and the discovery phase begins, a larger scope of records will be necessary for a variety of reasons. Defendants are likely to request and receive blank HIPAAs allowing them to obtain records from all the plaintiff’s medical providers (often up to ten years, and sometimes longer). Ordering a much larger scope in advance of litigation will uncover any information the plaintiff might have forgotten to divulge in discovery and which may, for better or worse, impact the case.
Conduct a Thorough Client Interview and Secure a Signed HIPAA
Once the scope of the claim has been determined, it is a good time to prepare a short but detailed intake questionnaire that the interviewer can use while consulting with the client. Partial interviews will obtain partial results. The initial client interview requires the utmost attention, and the interviewer should be prepared to pinpoint exactly where to find the information necessary to obtain an accurate set of records evidencing the clients’ injuries and the treatment received. A client providing only a facility name or doctor name is not helpful. Be sure to ask for addresses and phone numbers, if they have them to ensure you are reaching the correct facility. A client may have trouble remembering particularities such as doctors’ names or dates of treatment. Ask clients what they do remember and go from there. If they do not know the exact dates, even getting them to narrow down their injury to a year is helpful in limiting the records orders and expenses.
If possible, it is best to secure a signed HIPAA authorization at the time of the interview (assuming it’s in person) and early on in the case, in order to obtain the claimant’s medical records. Hand-signed or “wet” HIPAAs are the best way to be sure the request is not kicked back incomplete. Although e-signatures are legal and the fastest way to obtain a signed authorization, HIPAA laws do not mandate how the authorizations are signed and therefore, many facilities continue to reject e-signed authorizations. Securing a blank HIPAA with a wet signature can be used for multiple requests and will prevent the delay of collecting records.
Do the Research and Make the Calls
When given only partial information, it is important to dig in and find exactly where records come from for each doctor and facility. It can be frustrating and tedious to track down that information but doing it right the first time will provide a better outcome and save money. Some providers use records services to relieve themselves of the burden of records production, while others do them in-house. Also, larger health systems have multiple departments whose records need to be ordered separately (i.e., pathology, x-rays, and labs).
Most facility websites will supply you with the information or instructions you need to successfully obtain records from them. Although some providers may request a proprietary authorization, a standard, up-to-date HIPAA will usually do the trick. Each state has a cap on what medical providers can charge for copies of medical records. If a bill for records appears too high, check that state’s rules on records fees. This information can usually be found on the Department of Health website for the state where the facility is located.
Follow Up with Providers and Track Progress
Beginning the follow up process early on will ensure timely results. Calling facilities shortly after sending requests will alert you to any requests that may not have been received by the proper facilities or any errors that may have occurred in the request process. It can also help identify whether a physician has moved or whether records have been destroyed, as many facilities have retention policies and only keep records for a period of 5-7 years, and sometimes less. Correcting issues early on will avoid delays in records processing and prevent the need for ordering the records a second time. Keeping a log of communications eliminates problems when dealing with larger facilities that can sometimes be difficult to work with.
Actually Review and Summarize Your Medical Records
An in-depth records review is necessary to really determine if you have what you need to reach a successful outcome. Medical records often uncover information like additional health care providers that can reveal important details on the strengths and weaknesses of your case. When your staff reviews the records, they will often determine that more records are necessary to obtain certain pieces of evidence needed to connect any missing links you might find in the discovery process.
Summarizing and indexing your records is essential to trial preparation. This ensures that when the people litigating the case need to identify critical evidence, they’re able to quickly access the “hot” documents they will use for deposition or trial.
In personal injury cases, x-rays and echocardiograms can be critical items of proof the jury needs to see. Having these films digitized makes presenting proof of injuries easy and accessible for the lawyers presenting the case.
Maintain Confidentiality at All Costs
It is imperative that the records requestor is aware of the HIPAA requirements and provides an accurate, complete, and up-to-date HIPAA authorization. The smallest error can generate a “kick-back” from the facility thereby lengthening the time for you to get the information you need, not to mention the cost of having to correct and resend the request. Up-to-date HIPAA information and forms can be found at the US Department of Health & Human Services website.
Attorneys have the duty to protect the information they receive concerning their clients. There are several reasons why clients may not want to disclose certain records to a third party, including their own attorney. Usually, people are particularly protective about their mental health records. But as attorneys, you know the information must be obtained and provided to the opponent, or a judge may compel you to disclose it. In many instances, attorneys can strike a deal where the injured party’s attorney will secure the records and only provide them if they contain relevant information. At this point, if the opponent insists, a judge may choose to look at the records “in camera” and rule on relevance and sign an order based on her findings.
For example, in a personal injury case against a pharmaceutical company, defendants requested the plaintiff’s psychiatric records in discovery. The plaintiff refused, prompting a motion to compel by the defendant. The judge allowed plaintiffs’ counsel to obtain the records independently, then he reviewed them in court. The records revealed the plaintiff had been raped as a child; however, the judge found the records irrelevant to the case at hand and denied the defendants’ motion. The records never saw the light of day.
Automate to Avoid Mistakes
The truth is many law firms struggle with the collection of records if they do not have a specific department dedicated to handle them. Legal staff can easily get bogged down with deadlines, client calls, and attorney demands that cause delays. The time, effort, and energy necessary to obtain the entire set of necessary records often requires a team of full-time staff that has knowledge of the HIPAA requirements and is completely dedicated to the records collection process. Alternatively, the use of a records collection service can lift that burden and allow staff to focus on their many other duties.
Mass tort dockets can easily grow into hundreds or thousands of clients. Automating requests is not only helpful, but essential to process that volume of records orders in a timely manner. However, automating requests can often lead to automation errors, so the requestor should carefully review the requests and the HIPAAs before they go out. Working off spreadsheets, handwritten notes, and emails can make the process confusing. Without proper automation software, the records ordering process becomes burdensome, time-consuming, and expensive.
Hire a Litigation Support Provider That Bundles Services
Professional records services are beneficial in removing the burden and pressure of ordering medical records from staff that is already struggling to keep up with the daily grind of running a law firm. Busy law firms need record retrieval service providers that are on the cutting edge of changes in information governance, regulations, compliance, and HIPAA laws. These record retrieval service providers are trained in locating records for facilities that might have closed, obtaining custodian affidavits, and performing follow up calls to ensure a quick turnaround.
A good records service provider will carry the burden of sending requests, making follow up calls, securing records, and delivering them to you ready to be reviewed and produced to your opponent when necessary. You can have a “send it and forget it” attitude and feel confident that you will obtain the records necessary to achieve a successful outcome.
Some record retrieval companies provide additional services that can be useful and timesaving for law firms. Those services might include preparing and serving subpoenas when necessary, organizing and bates numbering records, scanning records into electronic formats, reviewing them for discovery of more medical provider information, bookmarking key information, exhibit preparation, and more. Bundling services with an experienced litigation support company will save you money and headaches.
Hiring a full-service litigation support company can even help you do more. Some record retrieval services do more than handle and manage records retention. They might also have secure databases to cater to different types of personal injury cases and streamline the ordering process. They might provide a repository where the collected records can be stored, downloaded, and shared. And they may also offer additional services such as office support, copying, document production, record organization, and analysis.
When vetting litigation support services, look for a fully insured provider. Because errors in processing your records can have profound financial consequences, your litigation support team should have $10 million in insurance coverage at a minimum.
The MCS Group is a fully-insured, full-service litigation support company specializing in record retrieval and collection. Among the many services we provide, we have the tools to assist law firms in the collection, review, storage, and production of data. For a free consultation, contact The MCS Group today.