Your medical records in an injury claim

Medical records are the evidence of an injury. They show what happened, when, how it was treated, and how it changed over time. Because the other side reads them just as closely as your lawyer does, it helps to know what is in them and how they move.

It is general information, not legal advice, and it is not medical advice.

The parts of a record

• History and physical. The intake account of the injury and the first examination.
• Progress notes. Each follow-up visit — the classic format records what you report, what the exam shows, the assessment, and the plan.
• Imaging and radiology reports. The films themselves and the radiologist's written reading. The report language matters — "no acute abnormality" is not the same as "normal."
• Operative reports. A surgeon's detailed account of a procedure.
• Therapy notes. Physical, occupational, and mental-health treatment, often with measured progress.
• Discharge summaries. A summary of a hospital stay and the instructions on leaving.
• Diagnostic and procedure codes. Standardized codes attached to each visit — covered on medical bills and the EOB.

How records are requested and released

Records are protected by federal and state privacy law and are released only with a signed authorization or a valid legal process. The authorization names the provider, the recipient, the records covered, the time period, and an expiration date. The scope of an authorization is the thing to read: a form covering "any and all" records from "any" provider is very broad.

You have your own route to your records, separate from anything an insurer sends you. On a written request, a provider must let you inspect your records during business hours within five working days, and must send copies within fifteen days (Health & Saf. Code, § 123110). The statute caps what the provider may charge per page for the copies. If a lawyer requests them for you before a case is filed, a different statute applies — the records must be made available within five days, with copying and clerical costs capped (Evid. Code, § 1158).

Fixing an error

California gives you an addendum right, not a rewrite. You may submit a written addendum of up to 250 words for each item you believe is incomplete or incorrect, saying clearly that you want it made part of the record; the provider must attach it and must include it whenever it discloses the disputed portion (Health & Saf. Code, § 123111). Federal privacy law adds a right to request that the entry itself be amended, but the provider may deny the request — including on the ground that the record is accurate and complete — and must then let you submit a written statement of disagreement (45 C.F.R. § 164.526).

Putting your condition at issue

Making a claim for a physical injury waives privacy for the records that relate to that injury. Claiming ongoing or permanent effects, or a psychological injury, widens what is relevant, because the other side is entitled to test whether an earlier condition explains some of it. A pre-existing condition does not defeat a claim — if the accident made it worse, that worsening is compensable — but the prior records will be part of the picture.

Common problems

• Missing records. A provider closed, records were purged, or a visit was never documented. Request early.
• Transcription and copy-paste errors. Notes carried forward from a prior visit that no longer fit, wrong side noted, or a symptom mislabeled.
• Understated histories. A busy visit where you mentioned several problems and only one made the note.
• Gaps. A period with no treatment, which the defense reads as recovery unless there is a documented reason.

Retention

California's retention statute is narrower than it is usually described. It reaches providers licensed as clinics, health facilities, adult day health care providers, and home health agencies, and it requires records to be preserved for a minimum of seven years following discharge, except that an unemancipated minor's records must be kept at least one year past the minor's eighteenth birthday and in any case not less than seven years (Health & Saf. Code, § 123145).

A physician's own office is not on that list — an office operated by licensed practitioners for their own practice is exempt from clinic licensure, and a private office is not a health facility, which is defined around admission for a stay of 24 hours or longer. So the seven years you may have been told about does not necessarily cover the doctor who treated you. The safe course is to obtain and keep copies of the important records yourself.

Sources: Health & Saf. Code, § 123110 (inspection within five working days of a written request; copies transmitted within 15 days; per-page fee cap); Health & Saf. Code, § 123111 (patient addendum of up to 250 words per disputed item, which the provider must attach and disclose with the record); Health & Saf. Code, § 123145 (seven-year minimum retention for providers licensed under § 1205, § 1253, § 1575 and § 1726; unemancipated minors, one year past age 18 and not less than seven years); Health & Saf. Code, § 1206(a) (practitioner-operated offices exempt from clinic licensure); Health & Saf. Code, § 1250 (health facility defined by admission for 24 hours or longer); Evid. Code, § 1158 (attorney's written authorization before an action is filed; records available within five days; copying and clerical cost caps); 45 C.F.R. § 164.526 (right to request amendment; grounds for denial, including that the record is accurate and complete; statement of disagreement).

Common questions

Does the insurance company get all my medical records?

Not automatically. Records are released with your written authorization. Once you make a claim for injury, the records relevant to that injury become discoverable, and if you claim a long-term or psychological injury, some earlier records may be too.

Should I sign the authorization the adjuster sent me?

Read its scope first. A broad authorization can let an insurer pull your entire lifetime history from every provider. A narrower one limited to the injury and a reasonable time period is common. Whether to sign a specific form is a question for a lawyer.

There is an error in my records. What can I do?

Under California law you can submit a written addendum of up to 250 words for each item you say is incomplete or incorrect, and the provider has to attach it to the record and pass it on when it discloses that part of the record. Federal law also lets you ask for the entry itself to be amended, but the provider can refuse — including on the ground that the entry is accurate and complete — and then you can file a statement of disagreement.

How long do providers keep records?

It depends who treated you. Licensed clinics, hospitals and other health facilities, adult day health care providers, and home health agencies must keep records for at least seven years after discharge, and a minor's records until at least a year after they turn 18 and in no case less than seven years. A doctor's own office is not covered by that rule. Request important records early rather than assuming they will be there later.