1. How do I get my medical records?
You will need to submit a signed request and authorization form. Under Pennsylvania law, you have a right to a copy of your records but may be required to pay for costs of retrieval, copying, and delivery. Per page copying charges are set by state law. Fortunately, federal law caps those charges at "actual costs." Most importantly, where the hospital or doctor in the course of business maintains the records electronically (computerized) and the patient then specifically requests an electronic copy (which could be email, disc, or thumb drive) when they submit their written record request, the record keeper must comply and charge the actual cost of copying. At most that is a few minutes of a clerk’s time and the cost of a disc—often they charge only a "nuisance" charge (like $7.50) or provide the copy at no charge. This also applies to radiology studies (not just the reports of studies) requests for which should be separately directed to the radiology film library or radiology department. The computerized records are much less expensive than "paper" copies, and are easily again copied by the patient on home computers.
2. What do I need to do to protect my rights?
If you are injured, and the injuries are susceptible to photographs, take them. If your injuries limit your activities, keep a diary of the times and dates that you were so limited. Make sure you keep a list of your medical providers who treat you with addresses and phone numbers. If there are medical personnel who might know something useful to your claim, if at all possible, collect their names. Suit must be filed within strict time limits.
Consult with an experienced medical negligence attorney as promptly after the event as possible.
3. How long do I have to make a claim?
You have two years to file suit under Pennsylvania law. If you are a minor, you have two years from your 18th birthday to start suit. If you could not have reasonably discovered the nature or cause of your injury within two years, because, for instance, you had an illness or condition of which you were not aware and it went negligently undiagnosed worsening your prognosis, you may fall within an exception to the two year rule allowing two years from when you reasonably should have discovered the injury. Even that, however, is subject to certain additional limitations.
4. How can I know if I have a case?
Contact a medical malpractice attorney who will have physicians available to evaluate whether what happened to you was caused by substandard or negligent care. To proceed with a case, a physician generally in the same specialty as the defendant must report that there was negligence and it caused harm. At about the time of filing suit, such an expert must be able to at least report that negligence was likely, based upon a record review, and it contributed to harm.
5. What about the medical charges for treating the effects of the negligence? Who pays? If I have monetary recovery, must I repay?
Not a simple answer to this.
The general rule is that you or your health insurance initially pay for your care. The expenses you have out of pocket may be recovered in a successful claim against the negligent party. If medical expenses on your behalf were paid by Medicare, Medicaid, certain other "federally" created insurance programs (typically "ERISA" plans), you may recover those expenses but must repay the health insurer. Otherwise, the general rule is you may not recover those expenses incurred to the time of trial and the insurance company may not recover the expenses from you.
You may recover anticipated future medical expenses.
Not quite. Your only claim for injuries because of fellow employee’s negligence, or because of your employer’s negligence, almost always is against the workers’ compensation coverage (“WC”) for a portion of lost earnings, a death benefit, and medical expense coverage. You do not have an option of taking workers’ comp or suing the covered wrongdoer, and the WC process has some very important procedural requirements for the claimant to “perfect” his/her claim. However, if the injury was caused in whole or in part by the negligence (or defective product) of a “third party” (like another driver, machine manufacturer, independent contractor, for example), the worker does likely have a claim against them.
Yes, usually there is a repayment obligation (“subrogation”). Payments comp has made
up to the time of the third party settlement, minus a credit for a share of litigation costs and attorney fees, must be repaid. Also, WC can take a credit for future comp payments against the settlement fund. This is accomplished by a reduction of the ongoing comp payments. This rule of “subrogation” can be changed by state statute as it has been if the third party claim is medical malpractice where this particular right of subrogation has been eliminated.
With respect to a clam against a negligent person or entity (“third party”) who does not enjoy the protection of immunity under workers’ compensation, you should make sure you have collected information about the defendant: machine manufacturer and model and name of device, auto license plate number and driver’s license number, name and address of witnesses to any accident, make a record of medical care givers, and be in touch with an attorney early in the process. With respect to a workers’ compensation claim, you should be very careful to report any injury, large or small, and whether or not you think it requires treatment or time off. Be certain that the appropriate supervisor makes a record or report. Keep a diary of any reports you make of injury–when, where, to whom, and a list of witnesses—to the accident and to the reporting. If you need treatment, for the first 90 days you will have to treat with the doctors or facilities “posted” by your employer, but later can switch if you wish. If your employer does not accept your claim within three weeks, see an attorney. If they do, make sure their calculations of your benefits are correct. If your claim is picked up, be careful about notifications you receive. Your employer (or its insurer) might seek another doctor’s examination, or an evaluation by a vocational expert, or might ask you to accept another job. It has certain rights in this regard with which you probably have to cooperate, and often this a step in attempting to reduce or eliminate your compensation. You should consult with an attorney about them.
