One of the most common questions is if a victim of New York medical malpractice must give his or her medical records to the other attorney. This is true in any type of personal injury lawsuit, and can get particularly interesting in a dental case where the other party wants the entire medical file like primary care records or surgeries from years earlier. Clients ask, doesn’t HIPAA protect my medical records from disclosure and I can use that?
Well, yes, HIPAA does protect your medical records. However, in a personal injury lawsuit like a medical malpractice action, you are essentially WAIVING your HIPAA protections and putting your body—your health (your past health and your future health), your enjoyment of life, and your wellbeing—into contention for the litigation.
This is because a personal injury lawsuit is saying that the negligence of a healthcare provider has limited your quality of life and enjoyment of life, and caused injury to you that was not their before. In order for you to prove this, you must show that you did not have prior issues which also contributed to this loss of enjoyment or injury. It is also only fair for the defendant to be able to review your prior medical condition to see what was present when the alleged injuries occurred, and even whether the alleged injuries are pre-existing injuries.
Therefore, whenever you bring a medical malpractice lawsuit or other lawsuit, you will likely have to provide your HIPAA-protected medical records to the other party and attorney. There are very few exceptions where the medical records are not relevant (i.e., OB-GYN records for a dental malpractice case).
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.