Getting Third Party Medical Information To Prove Your Case Can Be Difficult

As human beings, we tend to think that the way a person or organization acts towards one person or group of people is an indicator of how they will act in the future. That’s why, in some cases, victims trying to prove their case in court will want to introduce evidence of other people who have been injured the same way the victim has been injured to show that the defendant has some kind of pattern or practice of being careless or negligent.

Putting aside whether such evidence is relevant and admissible in a personal injury trial (which can be a difficult question), there is another problem that comes up when trying to use this kind of evidence: privacy.

Federal Privacy Laws

Let’s say that a certain hospital was careless, and caused the death or serious injury of a patient. The hospital denies negligence or malpractice, saying that they routinely keep their premises clean and safe or that hospital staff routinely checks on patients to make sure they are OK.

Wouldn’t it be helpful to that victim to show 10, 20, or 100 other patients who were injured in the same way as the victim? If those patients testified that the hospital was careless or negligent towards them, or if their records showed that they were injured when the hospital did not attend to them, that would go a long way towards refuting the hospital’s defenses and proving negligence.

But getting that evidence necessarily requires disclosing private medical information of parties that aren’t part of the lawsuit. They are or were patients of the hospital, with federally protected privacy rights in their medical records, even if they never testify themselves.

Who Asserts Privilege?

Often, when a victim tries to get prior accident or injury records from a hospital or a nursing home, the facility/defendant will object, asserting the privacy rights of the facility’s patients, and citing the facility’s obligation to comply with federal medical privacy laws. Note that each individual patient doesn’t have to object—they may not even know you are trying to get information about them. The defendant facility can object on their behalf.

Balancing Tests

In most cases, courts will balance the needs of the victim with the privacy rights of the other, non-party patients. The court will ask if there are other ways for the victim to get the information in the records, or other ways to prove the case.

Sometimes, the court will review the records in private (called in camera review), to see what information is there, and to determine whether the information truly would be helpful to the victim. The court will, at all costs, try to protect the privacy rights of the non-party facility patients.

It is up to the victim to convince the court that the records are vital to proving negligence, and that there is no other, less intrusive way of getting the information contained in the non-party patients’ records.

We can help you get the evidence you need to prove your case.  Call the Knoxville personal injury attorneys at Fox Willis Burnette, PLLC, for help today.

Resource:

hhs.gov/hipaa/for-professionals/privacy/guidance/introduction/index.html