Releases for Medical Records Remain Tricky Area for MedMal Cases

February 11, 2016

In medical malpractice cases (or, as they are now called, “healthcare liability” actions), a HIPAA-compliant medical authorization is required so that defendants can obtain the complete medical records for the patient who is bringing suit.  This helps everyone have complete information as they are preparing for trial.  However, this is not as simple a requirement as it might initially seem.

In the Tennessee Court of Appeals’ recently-decided case Dolmon v. Donovan,  the Court was faced with an authorization that stated as follows: “The family of Dolman, Melinda, does hereby authorize Methodist LeBonheur Healthcare and its affiliates to release to ______________ the medical records prepared by personnel of the hospital…”

The other defendants moved to dismiss the lawsuit, claiming that the release didn’t give them permission to get the medical records.  The plaintiffs said that since the other defendants were all affiliates of Methodist LeBonheur, the release was sufficient.  The plaintiffs also pointed out that the defendants didn’t even try to use the release to get records.

The trial court determined that the release wasn’t sufficient and dismissed the complaint.  On appeal,  the Court of Appeals noted that there was no specific proof in the record indicating that all of the providers were “affiliates” of the hospital.  The fact that the other defendants didn’t even try to use the release to get the medical records didn’t matter.  As the Court put it, the statute places the burden on the plaintiff to give the proper release.  Thus, the case was dismissed.

The requirement of providing the HIPAA-compliant authorization has become one of the most often used lines of attack by defendants in medical malpractice actions. The arguments can be arcane and totally unanticipated by plaintiffs.  For example, defendants in some cases have cited the Code of Federal Regulations to nit-pick about language that a defendant argues must be included in a HIPAA-compliant authorization.  Other arguments are simpler, as here, where it is not clear from the face of the authorization that each named provider can obtain the other named provider’s records, as specifically required under the Tennessee pre-suit notice statute. And, while it may seem unfair that the defendants haven’t even bothered to try to use the authorization to obtain each other’s records, such a fact is irrelevant to the court.  The rule is harsh, but until such time as the law may be changed, this is an area where attorneys must be vigilant to make sure their clients get the chance for their day in court.

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