At some point in your personal injury claim, you’ll have to request copies of your medical records. They are the foundation of your claim. Your medical records are the most important evidence you can get to back up your demand for settlement.
Insurance companies rely heavily on your records and other documentation. Before deciding what amount to offer for settlement, the insurance adjuster will first scrutinize the nature and extent of your medical treatment. Without solid documentation of your injuries and treatment, you’ll have no foundation upon which to negotiate a settlement.
Privacy and HIPAA
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides protection for personal health information (PHI). HIPAA ensures your right to privacy, limiting who can access and receive your private information. It also ensures your right to obtain copies of your medical records.
While protecting your right to privacy, HIPAA has empowered each state to regulate how you can access your medical records. Some of those regulations include:
- Charging fees for processing and copying your records
- The time frame your medical provider has to release your records
- Limiting you to reviewing your records in your medical provider’s office
- Other reasonable restrictions
HIPAA protects against the unauthorized release of private medical information. If you sign a Release of Information, however, you are no longer protected. Most insurance companies require you to sign a release when you file a claim. Be sure the release only covers your current injuries. You never want to give the insurance company access to your entire medical history.
First-party Claims and IMEs
First-party insurance claims have different rules than third party claims. Most no-fault and worker’s comp insurance policies contain a clause that says in order for them to insure you against injuries, you must submit to an Independent Medical Exam (IME) at their request.
Insurance companies normally request IMEs when they want to challenge the nature and extent of your injuries, or the medical treatment you say you require. Because you signed the policy with the IME clause, you waived your right to privacy. Therefore, your IME results are readily available to your insurance company.
You have little choice if your no-fault or worker’s comp insurance company has you submit to an IME. If you refuse, they probably have the right to deny your claim.
Is it really “independent”?
An IME is used to obtain what the insurance company considers an objective medical opinion. Unfortunately, doctors working for insurance companies have a conflict of interest. They’re paid to render “independent” medical opinions, but an insurance company won’t continue to employ a doctor who gives too many opinions against the company’s interests.
Moreover, the results of an IME can legally be kept from you. In most cases where IMEs are performed, the insurance company reserves the right to deny the claimant access. If this happens in your claim, those records may be “discoverable” by your attorney after filing a lawsuit. Requesting certain records is sometimes only possible through litigation.
Third-party Claims and Release of Records
Third-party claims are those filed against an at-fault driver and defended by his insurance company. They exist in the absence of no-fault insurance, and normally do not require an IME. When you’re injured and seek medical care from your doctor, those medical records will not be accessible by the at-fault driver’s insurance company unless you allow it.
Alternately, the at-fault driver’s medical records will not be accessible by you. The driver’s insurance company has a limited right to keep those records from you.
When the at-fault driver’s insurance company refuses to make their insured’s medical records available, you may only be able to access them if you file a lawsuit. When a lawsuit is filed, your attorney can access those records with a subpoena.
Limitations on Accessing Records
While you may have a right to access your medical records, that right can be limited. HIPAA permits doctors to withhold certain information, which can include the following:
- The doctor’s personal notes intended to be his work product. These include his personal impressions, messages to other doctors and medical staff, and notes considered not directly related to your medical treatment.
- Information you may have told the doctors you never want to be disclosed.
- Information the doctor believes should not be disclosed regarding the treatment of a minor.
- Information the doctor believes may cause substantial harm to you or others.
- Information the doctor believes will unnecessarily result in public panic or riots.
- Information your doctor obtained from other doctors who may have treated you previously or concurrently. You have to request that information directly from those other doctors.
Requesting Medical Records by Written Notice
Requesting your records is not complicated. Most hospitals and clinics have their own forms specifically for this purpose. If not, we’ve included below a sample letter you can use to make the request. Be sure to substitute your own information where applicable.
In almost all cases, requests for copies of your medical records must be made in writing and by you personally. There are some exceptions to this requirement, including if you’re physically or mentally unable. In that case, a Power of Attorney authorization signed by you may be sufficient. If you’re represented by a Hyannis personal injury attorney, she can do it on your behalf.
When gathering your claim documentation, it’s essential to request the full extent of your records from all your healthcare providers. This includes every type of record related to your injuries, their treatment, and costs.