The patient's right to change the medical record
--- an opportunity for both sides of the BI case.
By Leonard Bucklin
Attorneys for bodily injured claimants C
are you inspecting and changing medical records?
Attorneys for the defense C when
there is the slightest chance the plaintiff will dispute the accuracy of a
medical record you have put into evidence C
are you getting the HIPAA privacy notice signed by the plaintiff?
For attorneys for bodily injured claimants - a
Abest practice@
is to routinely read to find errors in any medical record the defense has on
your client. (You can delegate the reading for errors to trusted legal
assistant, and you also might want to make it mandatory for your client to read
them also.) If there is an error that is adverse to your client, you
better lead the client through the process of he/she sending a written request
for change of the medical record.
Why should plaintiff's attorneys adopt this "best practice?" And what
is the opportunity for defense counsel?
Medical records routinely have errors in them (that=
s one of the reasons why medical mistakes occur.) A common error is failure to
record all the client/patient= s
complaints, leading to defense comments at trial that a complaint was not made
to the doctor, so the problem did not exist before the lawsuit claim was filed.
Another common error is mistakes in recording the history (e.g., of what was the
trigger to the problem). Another is A
denies X@ notations made not because a
question was asked and the client/patient said
A no@
, but rather simply the doctor never asked or never made a note of what was told
him/her.
If there is any uncorrected mistake in the record, the jury will naturally
side with the A written record@
the defense has introduced. By federal law, the medical provides has had the
patient sign a document that can come back and haunt him/her (and plaintiff=
s counsel). That document is the "HIPAA Privacy Notice" that patient=
s sign when they first visit he health provider.
Chances are that the HIPAA Privacy Notice, right above the patient=
s signature will be a section prominently stating that the patient has the
following rights:
Right to inspect and copy your health information.
Right to amend your health information.
Right to receive further information.
Right to file a complaint.
Although jurors themselves may never have inspected their own medical
records, they can easily be persuaded that any person filing a claim for
personal injuries A should and did@
look at their own medical records that would be in court.
Medical Testimony area of our catalog.
Bodily Injury area of our catalog.
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