Clients will often ask why is it necessary to provide access to my medical records? Quite rightly so, as an individual's records include sensitive and personal information.
Once a claimant has satisfied that the defendant has breached their duty of care, the next hurdle they must overcome is to prove that the index accident caused the injuries and symptoms complained of. This is known as causation and medical records are important in proving this. They are a contemporaneous note of injuries complained of after the accident, as well as detailing the timing of the treatment, the nature of the treatment and the progress of recovery and ongoing medical care required. They therefore help to link the accident and injuries thereby supporting a client's claim for injuries.
As a starting point therefore in a case where a client has sustained serious injuries, it is usual practice for a personal injury solicitor to obtain a full set of their client's medical records, which may include GP records, hospital records, x-rays and scan results and therapy records, such as physiotherapy, counselling or rehabilitation records, prior to instructing an independent medical expert. The records applied for will cover not just the post-accident period but also the period prior to the accident, which generally relates to GP records, but will also include hospital records, where the client may have attended hospital. It is essential for an independent medical expert to review the pre-accident records to be able to say whether the injuries complained of are accident related or whether a pre-accident condition has a part to play in the client's presentation.
Who will see the client's medical records?
A client's records are only supplied to their solicitor. That solicitor can only gain access to records with an appropriately signed authority. Once the records are received, the solicitor will sort and review them and make them available to the independent medical expert ahead of their assessment.
The medical expert will review your medicals in detail as they inform an important part of their assessment and subsequent opinion. The expert will consider any relevant previous medical history, the extent of the injuries alleged to have been caused by the accident and the response to treatment. The expert will also set out recommendations for treatment going forward and if they are able to provide a prognosis in relation to the injuries sustained. A prognosis is essential to enable a solicitor to value the claim.
Solicitors and medical experts are bound by data protection rules and are unable to disclose any information about a client any other person or organisation unless the client agrees or a Court orders disclosure.
It may be necessary in complex injury or serious injury claims, to disclose medical records to the opponent's solicitors, insurers or their medical experts and the court. Again, a client's consent must be obtained prior to disclosure. Any person or organisation that sees copies in connection with a client's claim will have to follow the rules of very strict rules of legal privilege and the Data Protection Act and should never disclose details to others not connected with the case.
Pre-existing conditions- how can they impact my claim?
As noted above, a client's solicitor will examine the medical records to review whether a client has suffered any pre-existing conditions that could be attributed to their ongoing symptoms. If the records identify previous relevant conditions, then this could have a bearing on the outcome of the claim. It is important all clients remain open and honest and disclose relevant previous pre-existing medical conditions to an independent medical expert at the time of the examination. Non-disclosure could create issues with the claim and credibility, going forward.
It is therefore important that all clients remain entirely transparent and honest when discussing their injuries and treatment.
Practical steps to follow
We also recommend to clients that if they have been involved in an accident and sustained serious injuries, it is vital they seek medical advice straight away. Generally, this is not an issue because for the most part hospital treatment has been required and there is a contemporaneous note of injuries sustained.
We recommend keeping a record of medical visits including the dates of appointments, name of the healthcare professions details and treatment, advice given. Details of the treatment received can be provided with ease. We also recommend retaining medical treatment receipts as they will be recoverable as part of the compensation award if an independent expert considers the treatment received to be reasonable.
Can I refuse to provide access to my medical records?
If a claimant refuses to provide access to their medical records, the defendant's legal representatives can seek an Order from the court forcing disclosure of records. If the claimant fails to comply with an Order from the court, there are serious sanctions that could be imposed by the court, namely the claimant's case could be struck out and they are no longer entitled to continue with their compensation claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.