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Published: 13 August 2019
Author: Jodie Harris

Why do lawyers want my medical records?

Anyone who has been injured and is seeking compensation should be asked by their lawyer to sign authorities enabling the lawyer to obtain full copies of medical records of the person injured.

I am often asked why this is the case by clients and it’s common for them to initially say, "Isn’t this a complete invasion of my privacy?" or "My doctor won’t want to do this!"

While at the beginning it may feel like an invasion of a client’s private medical records, and may initially annoy the general practitioner, it is a necessary part of the proper preparation of any compensation claim.

For example, when a claim is lodged for a work-related injury, it is important to know whether a person has had a previous injury to the same area of the body, even if it was a long time ago and was only a minor injury. 

A good lawyer acting for an injured person will ensure they have looked through medical records to consider if there are any prior injuries which may impact upon the claim. If this has not been done, lawyers acting for WorkCover will seek all records and try to use the non-disclosure of prior injuries as a way to terminate entitlements or reject a claim. 

For example, they might argue that an injured worker failed to tell an insurer doctor that they had chiropractic treatment for a back problem over a 6-month period three years ago, and that it is that prior problem which is causing the person to be unfit for work.

What to look for when choosing a compensation lawyer

A good compensation lawyer will ensure they:

  • have carefully reviewed the client’s medical records
  • determined if there are any past problems relevant to the claim
  • ask the client’s treating medical practitioner whether the past problems have any relevance to the current diagnosis of work-related injury; and
  • properly brief any doctor of past medical problems and ask whether it has any relevance to the current problem.

Sometimes, other unrelated problems show up in medical records which can also be of relevance. For example, if you are seeking damages for pain and suffering and future loss of earnings for a work-related injury, other injuries or illnesses which you may have might impact upon any such claim

Past injuries and illness can impact claims

For example, Jane is 40 years old and is a nurse. She suffered an injury to her knee 10 years ago while playing netball. It never fully recovered and has grumbled along, but it hasn’t stopped her from undertaking nursing duties. However, doctors have advised her that she will require a full knee replacement in the future and that at some point she will have to consider whether working on her feet is something that she will be able to do in the longer term. 

This might mean that Jane would need to consider ceasing work as a nurse because of her knee problem by the time she is 60 years of age. Jane then suffers a work injury to her lumbar spine at the age of 40 and requires spinal surgery. The doctors have advised her that she will not be able to return to work as a nurse because of the back injury. Jane wants to claim future loss of earnings as a nurse until age 67 because of the back injury. 

Jane’s prior knee injury then becomes relevant. WorkCover will argue that Jane would never have worked as a nurse until age 67 because of her prior knee problem which would have seen her cease as a nurse at age 60 even if she did not suffer the back injury. In this example, there would be merit to WorkCover’s argument. Any lawyer involved in such a case would need to be aware of Jane’s history and properly develop a case strategy to deal with the prior knee problem.

Unfortunately, being involved in a compensation claim does result in you giving access to lawyers to your confidential and personal medical records. It is important to remember that your lawyers will treat your records with the utmost confidentiality and sensitivity. By giving such access, your lawyer will be properly prepared to deal with all the issues in your case. 

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