April 17, 2015 • Personal Injury FAQs
Can an attorney subpoena your medical records during the course of your personal injury lawsuit? The answer is no.
During the course of your lawsuit, whether it is a medical malpractice, car accident, or even a wrongful death case, lawyers cannot use subpoena powers during the course of your litigation in order to acquire your medical records. Instead, the only time lawyers are allowed to use subpoena powers is when they are approaching trial and during the course of a trial.
What is the Regular Procedure for Obtaining Copies of Your Medical Records?
If the attorney wants to attain copies of your medical records, then one of the ways to do this would be to obtain a permission slip from you, which is known as HIPAA authorization. The lawyer will take the permission slip signed by you, attach a cover letter, and send it to the concerned doctor’s office or hospital, which is the main procedure for getting copies of your medical records. As your case is approaching trial, your attorney will need to get your medical records into court, so that it can be used as evidence in your case.
When can the Lawyer Subpoena Your Medical Records
Only then can your lawyer use a document known as a subpoena. This subpoena compels a doctor or hospital to actually produce something, or show up at trial as a witness. If your lawyer were to use subpoena powers during the pre-trial litigation phase, it would be deemed an abuse of power.
You and your lawyer could get into lot of trouble for doing this, which could include a fine, sanction by court, or other punitive measures. Such punitive actions are taken because there are alternative ways to acquire medical records during the pre-trial phase, without going the route of compelling someone with a document known as a subpoena.
Suppose your attorney needs to get your medical records from a municipal hospital as you are approaching trial, then he will actually have to secure a court order. The court has to approve your request and sign off on an authorization for you to go ahead and acquire the records.
Many people are under the impression, that just because they are filing a lawsuit, their attorneys will have the power to subpoena their medical records. Especially, when the hospital or doctor’s office is not voluntarily turning over the records, people think their attorneys can freely use subpoena powers. However, this is a misconception.
Subpoena powers can only be used when the normal procedures to acquire medical records have failed and the doctor or hospital is refusing to provide copies of the medical records without giving any reasons. Only when regular procedures and other alternatives have failed, the court might allow your lawyer to subpoena your medical records, where the doctor or hospital will be legally compelled to grant you the copies of your records.