Posted on Wednesday, March 6th, 2024 at 5:14 pm
Medical records play a crucial role in mass tort litigation. In any lawsuit where medical devices, pharmaceutical drugs, or harmful consumer products may have caused or been part of the alleged injuries or damages, these documents provide a large portion of the evidence needed to support plaintiffs’ cases and help law firms establish causation between the harmful product or drug and the injury sustained.
Mass tort law firms like Wallace Miller go through the process of requesting medical records in order to make the strongest case possible for our clients. Medical record review and retrieval is a complicated process, particularly in cases with multiple plaintiffs.
We sat down with a Legal Nurse Consultant (LNC) on our team to learn more about how it works.
Meet Debbie Pritts
Debbie has been an LNC at Wallace Miller for 17 years and has more than two decades of clinical nursing experience. As an LNC, she assists in reviewing medical records and works with the attorneys to help them gain a complete understanding of the medical aspects of their cases.
What information do we get from medical records in mass tort litigation?
Debbie: For many of our mass tort cases, we may need a very limited amount of information. We need the information for proof of use of either the device or the drug. And then whatever they claim their injury is, proof of the injury, and maybe some confounders or history of other risk factors that they might have had.
What do we need from clients to request medical records?
In order to sign on for a mass tort litigation, a potential client will work with our intake team to sign a Retainer Agreement. Once that’s completed, the client will fill out a packet of forms that include detailed questions related to the potential claim, questions about medical history, and a HIPAA form that we use to prove we have your permission to review your medical records. Based on the information you provide in the packet, we contact your medical providers as well as the offices, hospitals, and pharmacies that may have the records we need to move forward with the case.
What happens after medical record retrieval?
As soon as records come in, they are electronically made word searchable. We call that process OCR, optical character resolution. This process takes the digital image of the paper document and converts the letters, numbers, and symbols to a searchable text. This helps us to search the records more quickly and efficiently to see if we received what we requested for the mass tort case. If we were looking for certain information and it’s not in there, we have to request it. So then the process starts all over again.
If we need more records, we re-request or go back to the client. Sometimes it happens that the provider will say, “There were no records for that date of service, we don’t have anything on file for those dates.” That means a call back to the client to say, “Did you give us the right dates? Let’s think about this.” So it’s really important to try to get that accurate information up front.
What happens when a law firm requests medical records?
Many times, when we submit medical record requests on behalf of our clients, the provider wants to charge a third-party fee for requesting your records and sending them. That is the vendor’s business model and how they make money.
The firm covers upfront expenses, but those expenses come out of the potential settlement. When we go through the process of record retrieval, we’re essentially spending future money that we are hoping will go to our clients. So, in an effort to be good stewards of their future money, we want to keep the cost as low as possible. We always let our clients know if a provider is charging an inordinate fee so they have a chance to decide whether or not we should pay it.
Under HIPAA rules and the HITECH (Health Information Technology for Economic and Clinical Health) Act, patients have the right to get copies of their health records in electronic form without paying excessive fees. That’s why we don’t like to pay these third-party amounts. What the federal government says for patients who don’t want an itemized bill is that it should only cost six dollars and fifty cents. If you want an itemized bill as well, they can only charge for the time it takes one of their employees to make and send an electronic copy of that record.
Can a law firm fight the fee?
If we refuse to pay the amount because we think it’s too much money, then we can have our client, with our assistance, file an OCR—an Office of Civil Rights complaint—for failing to be able to obtain their records in a timely manner. But so many people are doing that and there’s so many complaints that we cannot always wait for that to happen. And it’s just another hoop to jump through, too, in this complete process that’s already so complicated.
So, we can pay that amount, and still file the complaint, and hope that in the future we finally get a ruling on it. If that happens, we will be refunded, which in turn refunds our client if they get a settlement. But there are a lot of steps involved, and a lot of state statutes that can complicate things.
Can patients request their own medical records?
Yes, every person has a right to their medical records. Access to it should be immediate, it should not be delayed. A client can request their record electronically and request it be sent to them electronically. The provider cannot add stipulations like, “It’s an older record, we have to send it to you in paper format.” If they can run it through a copier, they must do that and then send it electronically.
What the Office of Civil Rights says is that you have a right to access your records at any time, and in a reasonable amount of time, and in totality. They cannot withhold anything. Under HIPAA, providers have to release records right away to patients—but they’re under no such obligation to third parties. That’s one of the reasons it takes us longer than patients to get the records.
Many of us can now access our own medical records through the summaries that are usually sent to you after a visit in your electronic record. If you have a hospital stay, you can get a copy of your medical records simply by going into your electronic records through the healthcare provider’s portal and finding how to request it. You put the request in, and they’ll send it to you, many times in twenty-four to forty-eight hours, and it’s free to do it that way. Of course, the vendors that employ people to send records do not like that, because they are not making the profit they were before.
The most recent government guidance on patients’ rights to access their health information is available here: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/access/index.html
Is it better to go through a law firm to request records or request records yourself?
Clients often rely on us to obtain medical records, because they feel it’s difficult for them to do. If there are problems with record access, though, it can be quicker and more efficient if a client gets their own medical records. It’s financially the most cost-effective way and the fastest way to get the record. But we can and we do request records for clients.
If there are issues with getting the records, clients requesting their own is ideal because it’s usually quick. When my sister was in the hospital, she wanted to look at her records. I told her how to do it, she sent in the request, and in 24 hours she had her records in her portal that she transferred to me. It was 3,000 pages, the very next day. It’s that quick. It’s never that quick for us as a third party. There’s always a long process to follow.
If there are access issues with medical records, the best and most effective next step is typically the client reaching out directly to their provider. Your medical records team will guide you through requesting access and provide you with sample language for contacting the healthcare facility.
How much do medical records actually cost?
As a firm, we set a fee limit of one hundred dollars, meaning we will pay one hundred dollars for medical records. If we receive an invoice for the records for more than that, we reach out to the client to explain, “We can pay this, but we want to get your approval, because you can get them for $6.50.” And some will say, “Go ahead and do it,” because they would rather not go through the process. But we also have staff who work with our clients to help them access the records and sometimes even get them for free.
If anybody ever has a question about how to access their complete records, our medical records staff is prepared. They’re trained to help any of our clients to access their records efficiently and cost effectively.
Beyond cost, what are other barriers to accessing medical records?
One thing that’s difficult for our clients is that they don’t understand the portal. They sign up for it, they get notices of messages, but they don’t actively use the portal. And how to get your record isn’t always easily found on the portal. For the elderly, or somebody that’s IT-challenged, it’s just too much for them to do. Once they get the record, they must send it to us electronically too. It can be confusing.
Another issue is that it may be difficult for our clients to remember the details of past medical care, because many times it involves care going back ten-plus years ago. Many providers destroy records after ten years. So, if the records date back too far, we may not even have the ability to access them. They could be completely purged and nobody can retrieve them, particularly in pharmacy cases.
When does the legal nurse consultant get involved?
The nurses get involved when there are cases of medical malpractice, where it takes more intensive medical knowledge to go through the records. Or if we’re looking at potential bellwethers, we will scrutinize the records more closely to determine what the strongest cases are. For these cases, and individual one-off cases, the nurse is doing a more specific, detailed chronology.
Questions about how medical records may impact your mass tort litigation? Reach out to Wallace Miller at 312-261-6193 to speak to an experienced member of our legal team. We’re here to help you understand the case process and fight for justice.