How to use medical records effectively at the Rule 26 expert disclosure stage in personal injury Cases
a. Send/Review all records to expert
What is sent to a “Rule 26” expert? The short answer, as it pertains to medical records, is everything conceivably relevant or important. Summaries and indexes should be included because you cannot expect an expert to pour over every page and of course only a few parts of the records are “key documents” to the issues in the case.
b. Page citations in expert reports
Whether it’s a Rule 26 “disclosure” prepared and sent by the attorney or a Rule 26 expert report for a testifying or treating physician it is important to: cite to the factual record; cite the source for each factual statement (and this may require a page cite after every sentence); cite to deposition page and lines; and critically, cite to each medical record by author, date, and Bates #.
b. Draft Reports
In communicating with a medical expert there will inevitably be a discussion of what is in the medical records ¾ pointing out the key sections or chart entries. These communications preceding any expert report are privileged and not subject to discovery, including draft reports.
On December 2, 2010 Rules 26(a)(4)(B) and (C) were amended to provide work- product protection to draft expert reports and, with three exceptions, attorney- expert communications. These rules provide:
Trial Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form of the draft.
Trial Preparation Protection for Communications Between Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:
(i) relate to compensation for the expert’s study or testimony;
(ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party’s attorney provided and that the expert relied upon in forming the opinions to be expressed.
For more information on the effective use of medical records in personal injury cases see: