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Time part two September 26, 2008

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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I previously wrote a post ending with a question for the blogosphere.  The general question concerned the remedies involved when a hospital destroys medical records before the mandated 5 year holding period.  Well, Michael Brown of Peterson, Berk and Cross emailed me with an answer:

A provider’s destruction of medical records would also violate HIPAA federal privacy law. Your client could file a HIPAA complaint to Dept of Health and Human services, but the best that will yield is a slap on the wrist to the provider, with no civil claim or damages.

If the records were destroyed at a time the provider should have reasonably contemplated litigation would occur (e.g. if a hospital destroys records of a patient who suffered injuries during a medical procedure and is likely to file a malpractice claim), there may be spoilage law that applies. In the federal context, you can check out the landmark Zubulake cases, which set forth serious standards and penalties for document retention. Keyciting the Zubulake cases may lead you to influential State law cases concerning spoilage.

Thanks for the answer Mike.  I think there should be more someone could do when their medical records are lost or destroyed.  Any legislators out there that can help us out?

www.jonpgroth.com

 

 

 

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Time is (Not) On My Side September 4, 2008

Posted by Attorney Jonathan Groth in FAQ Personal Injury.
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2 comments

I talked with one of my favorite clients today.  At the end of our talk she said, “I have a professional question.”  That’s when a lawyers ears perk up and you try to remember every class you ever took in law school.  Who knows what topic is going to be discussed.

She asked about medical records.  Her records were destroyed.  She had the same primary doctor for years.  That general practitioner retired.  Her medical records were sent to another medical facility for ‘safe keeping.’  Well, they weren’t that safe because the facility destroyed them.

According to Wisconsin Administrative Code medical records must be “preserved” and “maintained” for at least 5 years.  (See HFS 124.14(2)c)). But, what happens if the records are destroyed! 

I’ll let you know the answer after I do a little research.  If you know, please post a comment!

Thank you.

www.jonpgroth.com

 Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in Sheboygan, Slinger, Pleasant Prairie and Wauwatosa.