How Do I Request Medical Records?

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To review a possible medical malpractice case or nursing home injury or neglect case at Duncan Law we must have the injured person’s medical records reviewed by an expert witness.  These are usually an expert nurse and/or a physician. For a medical expert to give a thorough review of your case it is important they have the opportunity to review the medical records.

To obtain a copy of the medical records you must request the records from the medical care provider. To provide these medical records to you, your health care provider must follow government privacy laws called HIPAA.  HIPAA is the Health Insurance Portability and Accountability Act of 1996.

First, you must qualify to receive the medical records. If you are the patient requesting your medical records, you can sign a HIPAA release and receive your medical records. If you are not the patient, you must have a formal release signed by the patient or have the legal authority to obtain these records.  The legal authority is usually granted by a power of attorney document properly executed by the patient (not just a hand written note signed by the patient). If the patient is incapacitated, you may have to obtain a legal guardianship or a court order to acquire the records. If the patient has died you must be the executor of their will or be appointed administrator of their estate by the clerk of the court or a judge.

Filling Out A Document

Second, after qualifying to receive the medical records you should make a written request to the medical care provider to provide the medical records. The medical provider may have these records stored electronically offsite away from their physical location, so it may take several days to obtain these records. If the records are stored offsite, the medical care provider should provide the records to you within 10 calendar days.

If the records are available at the facility, they should be able to have a copy made for you within 24 hours of your request. Do not expect to walk into the medical facility and they make you copies while you wait.

When you request the records, the staff may ask you why do you want a copy of your medical records? First, you are not required to answer that question. It is your medical records and you do not have to answer that question. However, any time you ask for medical records, especially from a doctor’s office, it raises flags and alerts the doctor to a possible problem. The staff will usually inform the doctor or nursing home administrator of the request and they go into “defensive mode”. In the past, some medical providers have been known to illegally change the medical records to “cover up” a mistake they have made.  Be aware this could happen. If the medical records are on site, you may ask the person in charge of medical records to pull the records so that you may look at the records on site before they are copied.  Once you have reviewed the records, you may then ask for copies.  After receiving the records, review the records and determine if any changes were made. If changes were made, notify your attorney immediately and dispute this with the medical facility.

Many medical providers will “discourage” you from obtaining the medicals by charging you an outrageous price per page to “copy” these medical records. Some providers will attempt to charge you a $1.00 per page.  If you have 600 pages due to an extended hospital or nursing home stay that could become very expensive. Fortunately, in North Carolina, there is a state law that prohibits excessive copy fees.  It is North Carolina General Statute  90?411, which states:

“A health care provider may charge a reasonable fee to cover the costs incurred in searching, handling, copying, and mailing medical records to the patient or the patient’s designated representative. The maximum fee for each request shall be seventy?five cents (75 cents) per page for the first 25 pages, fifty cents (50 cents) per page for pages 26 through 100, and twenty?five cents (25 cents) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.”

Once you’ve received your medical records contact your medical malpractice attorney or nursing home injury lawyer and provide them with the records so they can be appropriately reviewed.

Common Types of Nursing Home Abuse

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Most nursing home neglect and abuse cases go unreported. If you have a suspicion that there is abuse and neglect, you are probably right. Common signs are the patient complaining of hurting, lack of care by the staff, taking a long time to answer the call button, allowing patients to lie for many hours without turning the patients, the staff refusing an authorized relative to view medical records, and a general don’t care attitude by the staff.

How Much Time Do I Have to File a Nursing Home Abuse Lawsuit?

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Nursing home abuse and neglect is a terrible act against our elderly loved ones. If a loved one has been injured by the abuse or neglect of a nursing home facility then they have three years to file a lawsuit against the facility. If the neglect or abuse has resulted in death then a lawsuit would need to be filed within two years to meet the Statute of Limitations.

Common Signs of Nursing Home Abuse

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Most nursing home neglect and abuse cases go unreported. If you have a suspicion that there is abuse and neglect, you are probably right. Common signs are the patient complaining of hurting, lack of care by the staff, taking a long time to answer the call button, allowing patients to lie for many hours without turning the patients, the staff refusing an authorized relative to view medical records, and a general don’t care attitude by the staff.

Timeline For a Nursing Home Abuse Case

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A nursing home abuse and neglect case is a type of medical malpractice case. These types of cases are known as a complex litigation case.  The usual timeline from the date of filing a lawsuit, also known as the complaint, to settlement or trial is usually anywhere from one to three years.

You are probably asking why so long? On television programs the case goes to court within one hour. Of course, this is television, not real life.

In a real case, the attorney must first meet with the family and investigate the nursing home case.  A nursing home will not allow an attorney to question their staff, before filing a lawsuit, to determine if there is a legitimate case. Therefore, the attorney must first examine the medical records.  It may take several weeks to obtain these medical records. The attorney then begins to piece together what happened at the nursing home.

Next, if the attorney believes there are grounds for a medical malpractice case, under North Carolina law, they must have these records reviewed by an expert doctor and/or nurse.  This will usually take at least 30 days for the expert to review the records.  As you can see, we are already at about two months of time elapsed and the lawsuit has not even been filed.

If the expert doctor and/or nurse believe the nursing home staff has violated the “standard of care”, the expert will render an opinion to the attorney.  At this time the attorney begins the legal process of developing a complaint or lawsuit.  Depending on the complexity of the case, the Complaint that has to be drafted for the lawsuit to be filed may take several weeks.

Eventually the attorney files the lawsuit at the courthouse.  The deputy sheriff must then serve the lawsuit on the nursing home.  Large corporate chains own most nursing homes making it difficult, at times, to determine the appropriate party to be served.  After being served, the nursing home retains defense counsel.  The defense counsel usually files an extension to “answer” the lawsuit.  This usually takes about another 60 days.

At this time the discovery process begins.  This is when expert witnesses, such as doctors and nurses, and the staff of the nursing home are questioned under oath at what is known as a deposition. Again, depending upon the complexity of the case this could take a year to complete.  By now we are up to least 18 months since the family first met with the attorney.

Eventually the court will schedule mediation.  Mediation is an attempt to settle the case before trial. This will usually take place several months after the discovery process ends.  At mediation, both the plaintiff and the defendant meet with a mediator to try to resolve the case without the time and expense of a trial.  Many times mediation is successful and the case is settled.  Sometimes mediation is unsuccessful and the case would then proceed to trial several months later.  A typical trial may last anywhere from one to four weeks.

As you can see, the wheels of justice roll slowly. We have an imperfect and often times slow justice system but there is no doubt it is the best in the world. Knowing the timeline of a typical nursing home abuse case is important when determining how you want to move forward to obtain the justice your loved one deserves.

What is the Statute of Limitations for a Nursing Home Abuse and Neglect Case?

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If you or a loved one has been injured or severely neglected in a nursing home, the timeframe to seek damages against the facility and staff is limited by law in North Carolina to three years from the last act of malpractice. In other words, you must file a lawsuit prior to the three year deadline or you are forever barred from suing the facility and staff.

It helps to understand how nursing home abuse and neglect cases are viewed by the legal system. A nursing home abuse and neglect case is considered a malpractice case. As defined by the N.C. General Statutes, malpractice arises from the performance of or failure to perform professional services. N.C. Gen. Stat. § 1-15(c) limits the timeframe to three years from the last act of malpractice. Only in extremely rare cases of nursing home abuse and neglect would the timeframe to file a lawsuit be extended to four years from the last act of malpractice.

Therefore, if you believe you or your family member has been a victim of nursing home abuse or neglect, you should seek legal advice as soon as possible. Most attorneys need six months to review the case and obtain the required expert witnesses (usually doctors and nurses) prior to filing a lawsuit.

Who Is A Medical Expert?

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Expert witnesses play a vital role in the success of a case at trial. Typically, both the plaintiffs and the defendants will have expert witnesses that testify that either the standard of care was or was not violated. The outcome of a case may depend upon which expert witness the jury believes more. Therefore, having reliable and qualified expert witness that can assist the jury with the evidence is paramount to having a successful outcome at trial.

The role of an expert is to assist the jury in how they understand the evidence in the case. According to the North Carolina Rules of Evidence an expert is, “a witness who has specialized knowledge may be qualified as an expert witness, upon a showing of his specialized knowledge, skill, training, experience, or education, and may testify in the form of an opinion, if that will be helpful to the jury.” N.C.R. Evid. 702(a).

A medical expert comes in many forms. Typically, an attorney will have a medical expert that is familiar with and focuses on a particular practice of medicine. For example, a trial dealing with injuries suffered during birth would likely have an OB/GYN as the medical expert. An injury dealing with the spinal cord would have a neurosurgeon or rheumatologist. A case dealing with the neglect in a nursing home may only need a registered nurse as an expert.

When put in its simplest form, a medical expert is someone who can help the jury understand the medical side of a trial. The best experts are the best educators. Medical experts will usually explain to the jury what the standard of care or usual actions of the medical industry are. This, in turn, allows a jury to determine liability.

Preventing Nursing Home Injury of a Loved One

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One of the best ways to protect your loved one from abuse or neglect in a nursing home is frequent and unplanned visits to the facility to see the patient. This will allow you to see how care is provided by a number of the staff members at various times of the day and night. And although it is often difficult, a physical exam of the family member can often reveal injuries that have been hidden by clothing or blankets. Unreported cuts, bruises and bed sores are often discovered by the family member during a physical exam. If the patient has gauze, patches or other coverings of the skin, you should ask why it is there and ask to be present the next time the covering is changed.

Help your loved one by being aware of these signs of abuse and neglect and being attentive to their care. Contact us if we can help assist you in any way.

Signs of Nursing Home Abuse

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Too often nursing home abuse or neglect takes place in a nursing home but is never detected until it is too late.

One of the unfortunate realities about growing old is that your body and mind begin to deteriorate. That is a fact of life. However, the excuses that injuries and conditions are caused by old age are too common in nursing facilities. No matter what someone’s age is they should not suffer the consequences of a staff that fails to provide the care that they are being paid to give.

The best way to protect your loved one in a nursing facility is to stay engaged and active in their care. Don’t ever hesitate to ask questions or demand answers if you believe they are not receiving the appropriate care. However, below are some common examples of nursing home neglect and abuse:

Rapid loss of weight without a change in medical treatment

Untouched food on trays that are out of patient’s reach

Extreme hunger when eating with or fed by family

Extreme thirst when fluids are provided by family

Overly medicated, despondent and generally not acting themselves (unless there is a medical reason)

Suddenly fearful or easily spooked

Excessive number of or frequent occurrence of cuts, bruises and other wounds

Frequent hospitalizations

Hesitancy of nursing home to send your loved one to the hospital

Hesitancy of nursing home to seek physician opinion when requested by patient or family

Rarely gets patient out of bed or rarely turns the patient (unless medical condition requires non-movement)

Lack of safety restraints when sitting in a wheelchair

Frequent or unexplained broken bones

Smell or odor coming from the patient may be a sign of bed sores or decubitus ulcers

If you believe your loved one is suffering some form of nursing home neglect or abuse it is important that you contact a nursing home injury lawyer.

What is the Standard of Care?

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What is the “standard of care” in a medical malpractice case in North Carolina? Many people have asked us this question at Duncan Law.

In North Carolina to be successful in a medical malpractice action, you must prove to a jury or judge that the defendant healthcare provider deviated from or violated the standard of care. This is usually done by testimony of an expert witness, usually another healthcare provider in the same specialty as the defendant healthcare provider. The North Carolina legislature has defined the standard of care in North Carolina General Statute 90-21.12. The law states:

“In any action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other healthcare, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such healthcare provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to this cause of action.”

You are probably asking what does all of this legal jargon mean?

Basically, the law states that a doctor, dentist, nurse, etc. must act within the same standards as other persons in their profession within the same or similar community at the time of the alleged medical malpractice action. In other words, a heart surgeon should practice and use the same guidelines and procedures as other heart surgeons in similar communities. As an exaggerated example, all heart surgeons do not use chain saws to open a patient’s chest. If a heart surgeon were to use a chain saw and injure the patient, then that doctor would had violated the standard of care. He should have known the use of the chainsaw was not within the standards for heart surgeons.

I have had many clients express to me that if there was a bad outcome for a medical treatment then the doctor must had made a mistake and therefore violated the standard of care. Not necessarily!

An example- sometimes patients are put under anesthesia and they never wake up and die. Did the anesthesiologist violate the standard of care by allowing the patient to die? The key question will be did the anesthesiologist do anything different under the same conditions and circumstances as another different anesthesiologist would had done? Sometimes, under no fault of anyone, patients have a reaction to the anesthesia and die. This would not necessarily be a violation of the standard of care. However, if the anesthesiologist forgot to turn on the oxygen for the patient and the patient died from lack of oxygen, then the failure to turn on the oxygen for the patient is a violation of the standard of care and the anesthesiologist probably committed medical malpractice.

We hope this helps you in understanding the requirement of deviating or violating the standard of care in North Carolina that is required for a successful medical malpractice case. If we can help you with a possible medical malpractice case that you may have contact us today.