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Privacy Laws Can Make it Hard to Get Records of Prior Accidents


Pretend for a moment that a loved one has been injured by the malpractice of a doctor, or by the carelessness or abuse of a nursing home. It is now on you to prove your case that the Defendant (the doctor, medical provider, or nursing home) did something wrong.

Of course, the focus of the case is and should be on your case and the facts surrounding the accident. But what about other people—strangers? Could their experience be helpful to proving your case?

Getting the Records of Strangers

From a common sense standpoint the answer is yes. Certainly, if a nursing home has a history of neglecting patients in the past, it makes it more likely that they did the same thing in your case. If a doctor misdiagnosed or mistreated 10 patients in the past year, it makes it more likely that he or she did the same thing to you or your loved one.

The common response is to get all of the records of other people who have been abused, mistreated, or the victims of malpractice or medical errors at the hands of whoever it is that you’re suing. Because this information seems so telling and relevant, it would seem like common sense that a Court would allow it.

The Right to Privacy

But that is not the case, because these other people who have been injured by the person or business you’re suing, are strangers to your case, with a right to privacy in their records. They don’t want information on their nursing home treatment, or their medical procedures, disclosed to you to help you prove your case. In fact, federal law provides all of us a right to privacy in their records.

These people who you are trying to get information about don’t have to object to prevent you from getting their information. The Defendant that you are suing—the hospital, doctor, or nursing home—can object on their behalf, and raise their right to privacy to prevent you from getting these records.

Reviewing the Requested Records

When an objection is made on the basis of privacy, the court must try to balance your need for the information you are requesting, with the privacy rights of the strangers whose records you are asking for. How much information is in their records, and is it really helpful to your case? Is there some other way that you can get this information, other than interfering with strangers’ privacy rights? These are questions courts will ask when determining whether you can get the information.

Courts will sometimes conduct an investigation of the records in private (“in camera”), to determine how necessary the records are. The Defendant will also propose other, alternative ways of getting the information that would otherwise be revealed by getting the private medical records of strangers. The Court will weigh both sides and determine whether the records should be turned over.

Proving your injury case requires getting all the necessary evidence. Contact the Miami personal injury attorneys at Velasquez & Associates P.A. today with any questions you may have.




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