How Do You Get Confidential Patient Records To Use In Your Case?
We all know that doctors, hospitals, schools, or nursing homes (among other businesses) tend to treat, take care of, or supervise a lot of other people. That’s why when we are injured by the negligence of one of these entities, we tend to ask whether other people have been injured in a similar way, by the same person or company we are suing.
A Typical Example
Let’s say that a loved one is neglected in a nursing home. It sure would be helpful to get prior records from other residents, and see if those other nursing home residents have been injured the same way. The potential to reveal a pattern or practice of injury and neglect by the nursing home, could make a jury believe that it is more likely that you (or your loved one) was treated the same way, making it powerful evidence for a victim.
What About Confidentiality?
However, there is one major obstacle to getting this “past victim” evidence—those people whose records you are trying to obtain and then present at trial, aren’t part of your lawsuit. Their information may be private (in fact, you already likely know that federal HIPAA laws protect people’s medical information).
If you tried to get information on the nursing home’s past residents, or a doctor’s prior patients, or prior records of injuries of kids that may have happened at a school or daycare, you likely will be met with an objection by the Defendant. The Defendant has a right to object to producing those records on two theories:
1) The Defendant itself could get in trouble under federal law, for revealing what is supposed to be the confidential records of its prior clients/patients/customers, and
2) The Defendant has a right to assert the privacy rights of its prior clients/patients/customers.
How the Court Resolves the Problem
This leaves the court with a dilemma; the court has to weigh your need to get the evidence you requested of prior records from former patients or children, against the privacy rights of those individuals, most of whom would never even know that their private information is being made public, or shown to anyone.
The court will usually start by looking at the records in camera—that is, in private—to see if there is anything even helpful to the victim who is requesting the records. If so, the court will then make a second decision: Does the benefit of giving the otherwise private patient records to the victim outweigh the privacy rights of those patients?
The Court will often ask if there are other ways of getting the requested information. For example, the victim may be able to get incident reports, lawsuit records, or other data, to get the same information in the customer/patient records.
Contact our Rhode Island personal injury lawyers at Robert E. Craven & Associates at 401-453-2700 today for help if you have been injured as a result of malpractice, or because of nursing home neglect.