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What Medical Records Are Defense Counsel Entitled To?

One of the issues that concerns injured parties going through a lawsuit is whether all of their medical records are open to discovery or limited only to those medical records related to the accident? Typically pre-litigation when only a claim for injury is made against an insurance company, medical records and bills only for the accident are provided to the insurance adjuster. Many times the insurance company may request prior medical records but under Wisconsin law, pre-litigation, there is no requirement or obligation to provide them. If we are representing an injured party where either there is a question of a pre-existing injury or an aggravation of a pre-existing injury, we ask our client permission to obtain those records, so we have a better idea of the previous injury; those records would only be furnished to the insurance company, with the prior consent of the client. In most cases, we respectfully decline to furnish prior years’ of medical records of our client to the insurance company.

Things change however, when the claim cannot be settled and a lawsuit must be commenced. Wisconsin construes pre-trial discovery liberally, so by filing a lawsuit, an injured party is opening themselves up to allow the defense counsel for the insurance company to have access to your prior medical records, whether related to the accident or not; the records request can go as far back as 5 to 10 years prior to accident; with the commencement of the lawsuit, expect to be bombarded with written pre-trial discovery documents, including requests for production of documents, written interrogatories and blank medical and wage/employment authorizations. On behalf of our clients, we are insistent that the medical authorization be addressed to a specific medical provider so we know where the authorization is being sent to and are further insistent on being included on the authorization or alternatively reaching an understanding with defense counsel, that we be provided a duplicate set of all medical records obtained by the attorneys for the defense attorneys. In that way, are insured of receiving the same records that the defense attorneys will be looking at.

Sometimes clients resist the idea of cooperating by signing medical authorizations as part of the lawsuit, feeling that their privacy is being violated and defense counsel has no right to review their medical records unrelated to the current accident case. While we can appreciate that argument, it is inconsistent with the law in Wisconsin dealing with pre-trial discovery. The failure to cooperate by signing the medical authorizations could result in a motion filed by defense counsel to compel a litigant to sign where sanctions and costs can be issued by the court; if a litigant still refused, under extreme circumstances, the court could even consider a complete dismissal of the lawsuit.

The long and short of it is if you don’t want your medical history under a magnifying glass by others you don’t know and have never met, reconsider that settlement offer previously made prior to the lawsuit, where when only making a claim, you are not obligated nor can you be compelled to sign medical authorizations releasing your medical records to defense counsel, whether related to the accident or not.

If you have questions about what medical records the defense attorneys can access in a personal injury lawsuit, contact the experienced personal injury accident lawyers at Karp & Iancu, S.C. today!

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