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 – are you inspecting and changing medical records?

Attorneys for the defense – when there is the slightest chance the plaintiff will dispute the accuracy of a medical record you have put into evidence – are you getting the HIPAA privacy notice signed by the plaintiff?

For attorneys for bodily injured claimants – a “best 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 him/her 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 “denies X” notations made not because a question was asked and the client/patient said “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 “written record” the defense has introduced. By federal law, the medical provider 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 the 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 “should and did” look at their own medical records that would be in court.