Filing a Negligence Claim & Prosecuting an Elder Neglect Case – the Process

Preserving Evidence and Gathering the Relevant Records to Investigate a Case

If you have a potential negligence claim you should take steps to preserve important evidence like photos, emails and other communications that may be relevant.

In the process of investigating a claim against a health care provider, it is important to gather all records that will assist in pursuing the matter. Your attorney can assist you with this process. The Health Insurance Portability and Accountability Act requires that a covered entity, such as a provider billing Medicare or Medicaid, maintain medical records for at least six years from the date of their creation or when they were last in effect.

Although not consistently followed, federal regulations, 42 CFR §483.10 (b) (2), require that nursing homes produce records within 24 hours of an oral or written request.

Patients can also request electronic copies of records under the Hi Tech Act to reduce cost.

Some facilities make it difficult to collect records. Under Virginia law even if a loved one does not have a power of attorney, he may still be able to get records for a mentally incapacitated adult. See Va. Code §32.1-127.1:03D(24). This statute applies to a spouse, son, daughter, parent or any relative of the patient.

If your attempt to obtain records is blocked by a healthcare provider you may want to consider reporting them to their licensing authority, but first call our office for a free consultation. There may be a simple fix for the issue.

Your attorney may also consider issuing an evidence preservation letter if you believe that there may be documents that explain an event but that have not been produced by the defendant. Most nursing homes are required to create separate incident reports regarding injuries which might include additional information beyond what was included in the chart. Often facilities will not produce incident reports until an attorney gets involved in the case. Under Virginia and Maryland law incident reports are discoverable.

Step 3: Opting Out of Mandatory Arbitration Provisions