Getting Your Medical Records, and What a Malpractice Lawyer Costs

People who suspect a medical error usually have two practical questions before any other: how do I get my records, and can I afford a lawyer? New York law addresses both.

You have a right to your records

Under Public Health Law § 18, you are entitled to see and to obtain copies of your own medical records from doctors, hospitals, and other providers. A parent or guardian can generally obtain a child's records, and the representative of an estate can obtain the records of a person who has died.

A few points:

• Ask in writing. Send a signed, dated request that identifies you, the provider, and the dates of treatment.
• Timing. The provider must let you inspect the records within 10 days of a written request, and must provide copies within a reasonable time.
• Cost. The provider may charge a reasonable fee, which for paper copies may not exceed 75 cents per page.
• Inability to pay. A provider may not deny you access solely because you cannot pay.
• Ask for everything. That includes imaging studies themselves and not only the reports, laboratory results, nursing notes, medication records, and consent forms.

You do not need to give a reason for asking, and you do not need a lawyer to make the request. In practice, a lawyer's office will usually gather the complete records as part of evaluating the case.

Why the records come first

A medical malpractice case in New York cannot simply be filed on suspicion. The lawyer must file a certificate stating that the facts have been reviewed with a physician and that there is a reasonable basis for the action (CPLR 3012-a). That review depends on the records.

It is also why time matters. The deadline for most malpractice claims is two years and six months, and gathering and reviewing records can take months.

How a malpractice lawyer is paid

Medical malpractice cases are handled on a contingency fee. The lawyer is paid a percentage of the recovery, and if there is no recovery there is no fee.

In New York the percentage is set by statute. Under Judiciary Law § 474-a, the fee in a medical, dental, or podiatric malpractice case may not exceed:

• 30 percent of the first $250,000 recovered
• 25 percent of the next $250,000
• 20 percent of the next $500,000
• 15 percent of the next $250,000
• 10 percent of any amount over $1,250,000

The scale applies to every lawyer in the state. It is lower than the one-third fee common in other injury cases, and the percentage falls as the recovery rises.

Expenses are separate

Malpractice cases are expensive to prepare. Experts must review the records and testify, and depositions must be taken. Your retainer agreement must explain how those expenses are handled and whether they come out of the recovery before or after the fee is calculated. Ask about this before you sign.

What a first conversation involves

A first call costs nothing. Expect to be asked what happened, where and when you were treated, and how you are doing now. From there the records are gathered and reviewed, and you are told plainly whether there is a case.

Many situations that feel like malpractice turn out not to be. A poor result is not by itself proof of negligence. You are entitled to an informed answer either way.

If you have questions about care you or a family member received, call the office. For more, see Medical Malpractice.