If you have an active lawsuit, you know that your medical records are the foundation of your entire case. Your damages from the date of your accident and long into the future are based on your injuries and how they affect your life. That’s why it’s essential to have access to these files any time you need them. But most people don’t think about this issue until they’re unhappy with their lawyer and want to move on. It’s by no means an easy decision, and hopefully, you’ve given it careful though and consideration before making the switch. Then again, maybe you haven’t made the switch yet, but have been thinking about it for some time.
People in either situation have called our office to ask, “Can I request my medical records from my lawyer’s office?”
The answer is yes, but we’ve learned one thing from answering this question for so many years. Chances are, the client has already asked for their case file, including their medical records. And for some reason, the lawyer has refused, or hasn’t sent them the file after repeated requests. So the client is really asking “Is my lawyer obligated to turn over my medical records?” This question is usually followed up by other inquiries, such as:
- How long does it usually take for a law firm to send me a copy of my file?
- Why is it taking so long for my old lawyer to send my medical records?
- Can I file a complaint if my lawyer refuses to hand over my case file?
We’d be happy to provide some insight in these areas, though please be aware that we can only give general information. If you need specific input on your own case, please give us a call and speak to one of our attorneys.
Is my Old Lawyer Obligated to Hand over my File?
It never ceases to amaze us how many lawyers insist that they’re not obligated to turn over a client’s records unless the client does x, y, or z. They should know better, considering the California State Bar’s Rules of Professional Conduct clearly state, “A member whose employment has terminated shall: (1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property.”
Some lawyers take a different approach and try to argue the definition of “property.” For example, if the lawyer called the doctor to ask for the client’s medical record, then it’s their property, not the client’s. But this interpretation ignores the State Bar’s guidelines, which read: “‘Client papers and property’ includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”
In short, there is no excuse for your lawyer to hold on to your file. If you ask for it, which we recommend you do in writing, they have to send over your case file in a reasonable amount of time. Which brings us to the next question: how long will it take before I receive my medical records?
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How Long should it take to Receive my Medical Records?
The answer is a bit iffy on this issue, since the rules state that case documents must be released “promptly” upon the client’s request. But that’s all it says, meaning there is no set number of days by which your lawyer has to send over your file. Having said that, it’s your lawyer’s duty to ensure there are no unnecessary delays in your case, and that can certainly happen the longer they hold on to your records.
Based on our experience and discussions with other lawyers, we’ve found that 30 days or less is a reasonable timeframe by which you should receive your case file. It really depends on the amount of information, and a large portion of that is probably your medical records. It could take a week or two to make copies, then assemble and package the documents for mailing. After that, it’s a matter of waiting for the post office to get the package to you or your new lawyer.
Why They Have not Sent me a Copy of my File?
If it’s been over 30 days and you’re still not in possession of your file, there may a legitimate reason for the delay. Some cases, especially lawsuits that have gone for years, are incredibly complex with huge amounts of evidence. But your law firm shouldn’t be keeping you in the dark if you’ve called them to ask about the status of your file. If they’re being evasive of ignoring your email and calls, there are two things you can do:
- Call the State Bar of California or use their online form to file a complaint. The Bar will conduct an investigation and take disciplinary action against your attorney if they agree with your complaint.
- Get help from your new attorney, or find one as soon as you can.
The second method is the quickest way to get results, since your new lawyer will immediately request the file directly from your old law firm. And law firms are less likely to give attorneys the same run-around they do with former clients. You should still file a complaint with the Bar, which your new lawyer can help you with. But waiting for the Bar to conduct their investigation won’t help you when you need your medical records as soon as possible.
Normandie Law Firm is here for you whether you need help retrieving your medical records or need to find a new attorney. Call us today to schedule a free consultation.
My Lawyer says I need to Pay for my Medical Records. Is that Right?
Again, it’s truly sad when lawyers misinterpret the guidelines set forth under the Rules of Professional Conduct. Remember the part about “whether the client has paid for them or not?” You can point your lawyer to that section when they demand payment for your case file. Now, if your law firm wants you to cover shipping costs for mailing the documents, that’s perfectly reasonable.
The other issue some clients come up against is the idea that a case file cannot be released if they owe their old lawyer money. Most personal injury lawyers work on contingency, so all legal fees should be deferred until the case is settled. But your law firm may have loaned you money for living expenses or an insurance deductible. Our firm does this as well, and it’s a way to help out clients while they wait for their compensation awards. However, a lawyer cannot demand you pay back the loan before they send over your file. This is akin to holding your file hostage, and it’s a clear violation of the State Bar’s code of conduct.
Of course, we recommend paying them or working out a payment arrangement as soon as possible, since your old firm can take legal action against you to recover the loan. But they must provide you your entire file, including your medical records, even if you owe them money.
What are my Right if my Lawyer Refuses to Send me a Copy of my File?
Knowing what you’re entitled to and getting it are two different things. If your lawyer insists on holding on to your file even after you point out the State guidelines, what do you do then? As this is a major violation of ethical standards, we recommend filing a complaint with the State Bar of California. You can fill out their complaint form online, or download it and fill it out on your time. Please come and see us if you need help filling out this form. Frankly, the form can be overwhelming as it comes with several pages of instructions. You also want to be as detailed as possible in the section where you describe your attorney’s violation. There my able other things you want to state in addition to your lawyer refusing to send your case file. We can make sure that everything is properly worded and that you are aware of your legal rights and obligations once you submit the complaint.
Another proactive step you can take is to find a new lawyer, if you haven’t done so already. This is actually the most effective way to get your medical records, along with anything else in your case file. A lawyer is less likely to throw out excuses to a fellow attorney, since they know the rules regarding attorney-client privilege. We also find that the process goes smoother when it’s between two attorneys, rather than the client and former attorney. If you’ve ever had a friend pick up your stuff from an ex’s house, you know what we’re talking about.
There’s one last option that clients inquire about – suing your lawyer if they won’t give you your medical records.
Can I Sue my Lawyer if I have not gotten a Copy of my File?
We hate to be vague, but the answer is “maybe.” Clients can sue their lawyer if they can prove a case of legal malpractice. What does this mean? To put it in layman’s terms, you would need to show evidence of the following factors:
- The lawyer committed some form of attorney misconduct as defined by the State Bar of California.
- Their misconduct involved negligence, like missing crucial deadlines and making mathematical errors.
- That conduct caused you significant financial losses, which necessitate the filing of a lawsuit.
If your head is spinning by this point, we don’t blame you. This is complex even for experienced attorneys, though we’ve assisted clients who had strong cases of legal malpractice. Here are some examples of legal malpractice that may justify a lawsuit:
- Agreeing to a settlement without the client’s consent.
- Neglecting pre-trial duties, like deposing witnesses and responding to the other party’s request for information.
- Failing to inform the client of important considerations regarding insurance terms, workers’ compensation laws, etc.
- Misplacing documents and other pieces of evidence needed for the lawsuit.
- Missing deadlines that cause delays or result in the case being dismissed.
- Delegating work to a less experienced lawyer or to another law firm without the client’s approval.
If you believe your old lawyer committed legal malpractice, speak to one of our attorneys right away. They can go over your legal options and help you make a decision you’re comfortable with. We can also take over as your new counsel if you’d like, though that decision is completely up to you. If you choose to work with us, we’ll take care of everything needed for the transfer, including a formal request to send over your medical records.
Free Second Opinion
If you’re second guessing your decision to fire your lawyer, that’s not at all unusual. The lawsuit process has plenty of ups and downs, and it’s easy to get wrapped up in the small things and blow them out of proportion. That’s why it’s best to speak with another attorney and find out if you’re really doing the right thing. We can provide that guidance for you during a free second opinion consultation. During your second opinion, we can address any of your concerns, including:
- I feel like my case is worth more than what my lawyer is telling me.
- My attorney doesn’t seem to care about me as a person.
- Every time I ask a question, I don’t get clear answers.
- My lawyer keeps asking for extensions, and I don’t understand why.
If you’d like for us to take over your lawsuit, all the work needed to transfer your case is handled by us. That way, you can avoid the awkwardness of dealing with your lawyer in person or asking for your medical records from your old law firm. If you’re ready to find a new lawyer or just want to confirm your suspicions, contact our office and schedule a free second opinion.
Why Choose Normandie
When things don’t work out with your lawyer, it’s hard to take a chance and trust another attorney. Sometimes, that’s enough to make you stay with your lawyer and hope that things work out. But that’s a big risk to take when you think about all you have to lose. Making the right choice is difficult, but we’re here to guide you and help you make an informed decision regarding your legal advisor.
You certainly have choices when it comes to a new law firm, so why should you choose Normandie? We believe our strength lies in two things – experience and compassion. Here at Normandie, it’s not enough to have the legal knowledge and case experience to settle a lawsuit. Behind each accident is a victim, who’s been struggling with the aftermath of an accident through no fault of their own. The compassion and respect we have for our clients is no less important than our legal expertise.
Our commitment to accident victims is why we operate under a Zero fee guarantee. Simply put, you are never billed upfront for our services. We only get paid if we win your case, and that’s a promise even if you’re coming to us from another law firm. If we sound like a firm you’d like to work with, please don’t hesitate to give us a call. We have many years of experience with all types of injury cases, including:
- Slip and falls
- Trip and falls
- Car accidents
- Truck accidents
- Bus accidents
- Rental car accidents
- Motorcycle accidents
- Workplace injuries
- Dog bite incidents
- Hotel liability accidents
- Helicopter accidents
- Plane accidents
- Assault and battery
- Sexual assault – sexual harassment
- Defective product injuries
- Medical malpractice
- Wrongful death claims
