How Do I Request Medical Records?

To review a possible medical malpractice case or nursing home injury or neglect case at Duncan Law we must have the injured person’s medical records reviewed by an expert witness.  These are usually an expert nurse and/or a physician. For a medical expert to give a thorough review of your case it is important they have the opportunity to review the medical records.

To obtain a copy of the medical records you must request the records from the medical care provider. To provide these medical records to you, your health care provider must follow government privacy laws called HIPAA.  HIPAA is the Health Insurance Portability and Accountability Act of 1996.

First, you must qualify to receive the medical records. If you are the patient requesting your medical records, you can sign a HIPAA release and receive your medical records. If you are not the patient, you must have a formal release signed by the patient or have the legal authority to obtain these records.  The legal authority is usually granted by a power of attorney document properly executed by the patient (not just a hand written note signed by the patient). If the patient is incapacitated, you may have to obtain a legal guardianship or a court order to acquire the records. If the patient has died you must be the executor of their will or be appointed administrator of their estate by the clerk of the court or a judge.

Filling Out A Document

Second, after qualifying to receive the medical records you should make a written request to the medical care provider to provide the medical records. The medical provider may have these records stored electronically offsite away from their physical location, so it may take several days to obtain these records. If the records are stored offsite, the medical care provider should provide the records to you within 10 calendar days.

If the records are available at the facility, they should be able to have a copy made for you within 24 hours of your request. Do not expect to walk into the medical facility and they make you copies while you wait.

When you request the records, the staff may ask you why do you want a copy of your medical records? First, you are not required to answer that question. It is your medical records and you do not have to answer that question. However, any time you ask for medical records, especially from a doctor’s office, it raises flags and alerts the doctor to a possible problem. The staff will usually inform the doctor or nursing home administrator of the request and they go into “defensive mode”. In the past, some medical providers have been known to illegally change the medical records to “cover up” a mistake they have made.  Be aware this could happen. If the medical records are on site, you may ask the person in charge of medical records to pull the records so that you may look at the records on site before they are copied.  Once you have reviewed the records, you may then ask for copies.  After receiving the records, review the records and determine if any changes were made. If changes were made, notify your attorney immediately and dispute this with the medical facility.

Many medical providers will “discourage” you from obtaining the medicals by charging you an outrageous price per page to “copy” these medical records. Some providers will attempt to charge you a $1.00 per page.  If you have 600 pages due to an extended hospital or nursing home stay that could become very expensive. Fortunately, in North Carolina, there is a state law that prohibits excessive copy fees.  It is North Carolina General Statute  90?411, which states:

“A health care provider may charge a reasonable fee to cover the costs incurred in searching, handling, copying, and mailing medical records to the patient or the patient’s designated representative. The maximum fee for each request shall be seventy?five cents (75 cents) per page for the first 25 pages, fifty cents (50 cents) per page for pages 26 through 100, and twenty?five cents (25 cents) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.”

Once you’ve received your medical records contact your medical malpractice attorney or nursing home injury lawyer and provide them with the records so they can be appropriately reviewed.

Common Types of Nursing Home Abuse


Most nursing home neglect and abuse cases go unreported. If you have a suspicion that there is abuse and neglect, you are probably right. Common signs are the patient complaining of hurting, lack of care by the staff, taking a long time to answer the call button, allowing patients to lie for many hours without turning the patients, the staff refusing an authorized relative to view medical records, and a general don’t care attitude by the staff.

How Much Time Do I Have to File a Nursing Home Abuse Lawsuit?


Nursing home abuse and neglect is a terrible act against our elderly loved ones. If a loved one has been injured by the abuse or neglect of a nursing home facility then they have three years to file a lawsuit against the facility. If the neglect or abuse has resulted in death then a lawsuit would need to be filed within two years to meet the Statute of Limitations.

Common Signs of Nursing Home Abuse


Most nursing home neglect and abuse cases go unreported. If you have a suspicion that there is abuse and neglect, you are probably right. Common signs are the patient complaining of hurting, lack of care by the staff, taking a long time to answer the call button, allowing patients to lie for many hours without turning the patients, the staff refusing an authorized relative to view medical records, and a general don’t care attitude by the staff.

Timeline For a Nursing Home Abuse Case


A nursing home abuse and neglect case is a type of medical malpractice case. These types of cases are known as a complex litigation case.  The usual timeline from the date of filing a lawsuit, also known as the complaint, to settlement or trial is usually anywhere from one to three years.

You are probably asking why so long? On television programs the case goes to court within one hour. Of course, this is television, not real life.

In a real case, the attorney must first meet with the family and investigate the nursing home case.  A nursing home will not allow an attorney to question their staff, before filing a lawsuit, to determine if there is a legitimate case. Therefore, the attorney must first examine the medical records.  It may take several weeks to obtain these medical records. The attorney then begins to piece together what happened at the nursing home.

Next, if the attorney believes there are grounds for a medical malpractice case, under North Carolina law, they must have these records reviewed by an expert doctor and/or nurse.  This will usually take at least 30 days for the expert to review the records.  As you can see, we are already at about two months of time elapsed and the lawsuit has not even been filed.

If the expert doctor and/or nurse believe the nursing home staff has violated the “standard of care”, the expert will render an opinion to the attorney.  At this time the attorney begins the legal process of developing a complaint or lawsuit.  Depending on the complexity of the case, the Complaint that has to be drafted for the lawsuit to be filed may take several weeks.

Eventually the attorney files the lawsuit at the courthouse.  The deputy sheriff must then serve the lawsuit on the nursing home.  Large corporate chains own most nursing homes making it difficult, at times, to determine the appropriate party to be served.  After being served, the nursing home retains defense counsel.  The defense counsel usually files an extension to “answer” the lawsuit.  This usually takes about another 60 days.

At this time the discovery process begins.  This is when expert witnesses, such as doctors and nurses, and the staff of the nursing home are questioned under oath at what is known as a deposition. Again, depending upon the complexity of the case this could take a year to complete.  By now we are up to least 18 months since the family first met with the attorney.

Eventually the court will schedule mediation.  Mediation is an attempt to settle the case before trial. This will usually take place several months after the discovery process ends.  At mediation, both the plaintiff and the defendant meet with a mediator to try to resolve the case without the time and expense of a trial.  Many times mediation is successful and the case is settled.  Sometimes mediation is unsuccessful and the case would then proceed to trial several months later.  A typical trial may last anywhere from one to four weeks.

As you can see, the wheels of justice roll slowly. We have an imperfect and often times slow justice system but there is no doubt it is the best in the world. Knowing the timeline of a typical nursing home abuse case is important when determining how you want to move forward to obtain the justice your loved one deserves.

What are the Cost of Nursing Home Abuse Cases?


Normally, we work on what is known as a contingency basis. If you win and are awarded money through a settlement or by a jury award, we receive a percentage of the award or settlement. We advance nearly all of the cost of litigation, which could be from $5,000 to over $100,000. So in theory, there is no money out of your pocket unless you win. We are repaid our advance of costs, and the attorney’s fees only if you win. If, in the unlikely case you do not win, you do not owe us any of the money we have advanced on your behalf or any attorney’s fees. You pay only if you are awarded money. Contact us for a free consultation to speak with a Duncan Law attorney about your potential nursing home abuse or neglect lawsuit. You can learn more about our contingency contract at your free consultation.

How Long Will a Nursing Home Abuse Case Take?


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