Medical records are foundational evidence in claims and litigation. They document injuries sustained and treatment provided, uncover potential damages, and provide the factual foundation for claims settlement or case strategy. Under pressure to control litigation costs and meet accelerated timelines, some organizations have prioritized speed over legal rigor when retrieving medical records, often to their peril. Tunnel vision on turnaround time poses significant risks for attorneys and paralegals. Speed alone does not ensure legal defensibility.
Timely access to the complete set of medical records is necessary and important. Claim teams rely on them to assess exposure and determine appropriate indemnity. However, accessibility and even accuracy do not guarantee admissibility. Courts scrutinize not only the information contained in the records, but also the way the records were obtained, authenticated, and preserved.
The bottom line? Failing to obtain records properly can cost you the case.
From Convenience to Compliance: The Evolution of Record Retrieval
The record retrieval industry emerged in the early 1990s, driven by a growing need to streamline document discovery for litigation and ensure that records could withstand evidentiary challenges. What began as a niche support function has since evolved into a critical component of modern legal infrastructure. Today, the rapid adoption of electronic medical record systems and the accelerating pace of digital innovation have placed record provenance under a new level of scrutiny. Courts, regulators, and litigants increasingly expect clear, defensible documentation of how records are sourced, handled, and authenticated. As a result, retrieval providers now sit at the center of a complex ecosystem where accuracy, transparency, and chain‑of‑custody integrity are essential.
That scrutiny is playing out well beyond discovery. In Epic Systems Corporation v. Health Gorilla, Inc., Epic alleges that Health Gorilla used direct EMR/API access under the guise of "treatment" purposes (TPO exception), then repurposed that data for commercial use, which bypasses the need for a signed HIPAA Authorization.
Although the case does not set evidentiary precedent, it underscores growing concerns among courts and data custodians about ethics related to medical-record compliance and the technicalities involved. Direct EMR extraction should be reserved for providing ongoing medical care with patient authorization and not for claims or litigation purposes. Integritort is also a prominent example of a company alleged to have misused health information exchange networks by posing as a health care provider to access patient data for non-treatment purposes.
A patient must authorize a health care provider to share Protected Health Information (PHI) for claims and litigation purposes due to the HIPAA Privacy Rule’s provisions for Treatment, Payment, and Health Care Operations (TPO). As disputes over record access and authorization become more common in litigation, they reinforce the legal system’s increasing skepticism toward opaque or indirect EMR extraction methods. It is important to clarify that this concern refers to methods that lack transparency or direct extraction from EMR systems.
It’s not sufficient to produce a PDF print-out of an electronic health record and assume it will be accepted by the court. Courts could reject or limit the admissibility of records if the proper authorization, state or federal authority, is not followed. Documentation that tracks custody of records from creation to submission supports integrity. Without it, evidence may be excluded.
As courts reject or limit evidence that lacks defensible provenance, judges are scrutinizing these factors:
- Method. Was the appropriate legal authority in place at the right time?
- Control or Chain of Custody. Is there an unbroken, documented trail from the provider to final production?
- Authentication and Custodial Testimony. Can the producing party present a qualified witness to testify to the record’s integrity if challenged?
- Completeness. Many EMRs reflect what was recorded, rather than what actually occurred. Because providers create their own EMRs, it is difficult to maintain a comprehensive master record. Does the record represent the entire legal medical record, including diagnostic images, metadata, and ancillary provider files?
The Promise and Peril of Speed-First Record Retrieval
When it comes to vendor and internal team priorities, speed often takes precedence. Rapid record retrieval accelerates strategy sessions, enhances settlement negotiations, and reduces exposure periods. However, an overemphasis on speed compromises record completeness and jeopardizes the integrity of the chain of custody.
Popular retrieval methods like patient-portal downloads are permissible when a healthcare provider approves the request. However, direct access to patient records through reassignment in the National Healthcare Database, or other automated extraction methods, may seem efficient but is often legally insufficient without explicit patient authorization.
These approaches also fail to ensure documentation will be admissible, because they typically do not verify completeness or authenticity, especially when records are needed for legal proceedings rather than ongoing care. While portal downloads can be fast, they provide no assurance that the records are complete or legally defensible.
Similarly, electronic health record (EHR) extraction may be legally permissible when released by a hospital, but when accessed by a patient or third-party vendor it often produces documents that lack required control measures, procedural approvals, or custodial attestations. In contrast, a healthcare provider can ensure proper chain of custody and compliant release of records.
Moreover, these methods frequently omit critical components such as diagnostic imaging, embedded metadata, amendments, audit trails, and records maintained by ancillary providers. These omissions are not merely administrative oversights; they strike at the core of establishing causation, justifying damages, and reinforcing expert credibility. Incomplete records can distort medical causation assessments and weaken defense strategies from the outset.
Additionally, relying on HIPAA’s Patient Right of Access (PROA) to obtain records, while seemingly expedient, poses significant legal risks. Courts are increasingly skeptical of patient-obtained records as substitutes for properly preserved, legally defensible evidence. PROA requests often lack custodial affidavits, verified chains of custody, and authenticated testimonies, which are indispensable for maintaining evidentiary integrity. Without these safeguards, such records are vulnerable to legal challenge, undermining their usefulness in litigation.
The Price of Speed
When speed comes at the expense of defensibility, the downstream costs show up in case strategy, evidence credibility, and settlement outcomes, making record retrieval a litigation-critical function, not simply administrative work. Without credible records, parties can lose leverage at strategic moments, and these defects often are discovered too late to fix, compounding the negative impact on case value and strategy.
What Claims and Litigation Teams Should Do Now
When planning medical record retrieval, consider:
- Were records obtained legally? (Authorization)
- Has the chain of custody been fully tracked from source provider to final production? (Control)
- Can the vendor or retrieval team produce custodial affidavits and testimony if challenged? (Authentication)
- Do the records truly represent the complete legal medical record? (Completeness)
Precision First. Resolution Faster.
In today’s claims and litigation environment, speed alone does not move cases forward; defensibility does. Turnaround time must be balanced with the assurance that records will withstand judicial scrutiny. For the best chance at a positive resolution, claims and litigation teams should prioritize record retrieval methods to avoid costly delays, affidavits, sanctions, and compromised case outcomes.
Myrna Rembold is senior vice president, Enterprise Solutions and Western Region Sales, for Lexitas.