MANAGING RISK: How to Deal with Lawyers’ Requests for Medical Records

Timothy R. Bone

Even in the advent of tort reform in most states, a request for medical records from an attorney brings chills to many medical professionals. In such a litigious society, they often don’t know the best way to manage such requests.

“More and more frequently, when lawyers are requesting medical records in instances involving potential litigation, the involved physician often learns of the request only after the plaintiff’s lawsuit has been filed,” said Timothy R. Bone, president of Florida-based MedMal Direct Insurance Company. “This is not only true for hospitals, but also for individual physician practices. In fact, in Florida, it’s part of the pre-suit requirements for the patient’s attorney to obtain a copy of the pertinent medical records from the doctor who is the potential defendant.” 

Bone pointed out that over the years, he’s noticed an alarming trend of physicians simply relying on office staff to process this particular request for medical records – without notifying the attending physician!

“Even though there are many lawyers’ requests for medical records received in medical offices – though not all indicate a lawsuit against the attending physician is just around the corner – I’m absolutely sure that the attending physician would prefer to have notice of this lawyers’ request for medical records when the request involves a potential lawsuit against the attending physician,” said Bone. 

The best way to avoid releasing records to an attorney without notifying the attending physician about the inquiry is to adopt the policy of joint notification of the administrator, as well as the attending physician involved in the care of the patient about whom inquiries are made, said Bone.

A simple 3-step review procedure could easily be implemented into the physician practice: 

·      Review the list of record requests over a period of time to identify which have come from lawyers.

·      Review documentation in the involved charts – or in a log of entries of legal inquiries for medical records – indicating that the attending physician had been notified.

·      Regardless of existing documentation, contact a sample of the involved physicians to confirm that appropriate notification had actually been received. 

If all is in order, notify the Medical Executive Committee and the medical staff at the next staff meeting. If problems exist, then devise a solution, implement it, and re-audit the issue; report the findings to the Medical Executive Committee and to the medical staff, said Bone. 

“In the office of certain medical specialties, a dozen lawyers’ requests for medical records are received every week,” noted Bone, pointing out orthopedic surgeons handling work-related injuries as an example. “In this situation, each attending physician must grant authority to the administrator or staff outlining specific parameters as to when the physician should be notified by the staff of lawyers’ medical records requests. In this environment, the physician will not need to be notified of every request. However, when the letter begins with something similar to ‘This law firm represents Jane Doe, John Doe and their minor children for a medical negligence claim …,’ then the attending physician/surgeon should be immediately notified.” 

Bone noted that it’s also especially important to note that significant cooperation between the hospital and the involved physician may take place in bringing about effective arrangements to assure that justice will be served.

“Thus, when either party – the physician or the hospital – learns of potential litigation, each should notify the other so that a reasonable defense can be constructed,” said Bone.

Editor’s Note: This article is part of a risk management series with Timothy R. Bone, president of Florida-based MedMal Direct Insurance. With Bone’s integral assistance, Florida Medical News addresses some of the most common non-clinical problems by objectively approaching each issue and its resolution via the scientific method. This process includes providing an “outcome goal” or objective, and then offering a relatively simple approach to data-gathering via chart review, observations, or simple surveys. The series flows from the following known fact: as much as 80 percent of all medical malpractice lawsuits are generated from non-clinical issues in the practice of medicine.