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Tag: medical malpractice investigation

“Choosing” a surgeon

July 22, 2019

We are often in conversation with a potential client (which always means some kind of medical crisis has already occurred) and we ask:




And, what we have learned, is that most patients don’t recall the name of their surgeon and feel they had little to no choice in selecting him or her for the job.

I understand this. Just this week a loved one was told he might need surgery and his previous surgeon said “I will be out of the office that day so my partner, Dr. X will perform the surgery.” He didn’t say “I recommend X” or “X has the most experience” or even “If it were me I would want X to do it.” He simply said “X will do it,” as if my loved one had no say in the matter.

That is the part that disappoints me. Sure, when you go to McDonalds you don’t usually get to say “I want Ellen to make my burger please” but when you have a significant thing like a surgery done, that could cost you your life, livelihood or at the very least, significant money and time, I want patients to know they do have a right to choose.

So how can a patient choose?

Here is a quick list of questions to ask and places to look to get more information on your Virginia surgeon, so you feel you can make a more educated decision moving forward:

  1. DO YOUR RESEARCH. Sure, it has been said that Doctors don’t like it when patients Google their condition, but the way I see it, sometimes I wish Doctors themselves would go on Google and get some additional information. Do some research about the procedure you may require, and the surgeon! Want to see if they have been sued before, check your County or City Circuit court records (Chose location, then Civil, then last name):
  2. CONTINUE THE RESEARCH. While the Board of Medicine in Virginia rarely takes a doctor’s license, sometimes they do discipline them for bad behavior or abhorent patient care, and this won’t often show up in a simple Google search – you must go straight to the source where you search by last name.
  3. ASK AROUND. Nothing come up online? Ask family, friends, call a local attorney or Pastor – and ask the blunt question – “I have been told I need to have a procedure, and this is the surgeon who has been assigned – what do you know?”
  4. ASK THE SURGEON DIRECT QUESTIONS. Please, please please – ask the surgeon AND anesthesia team the following questions: (a) How many of these do you do in a year? (b) When was the last one of these you handled yourself? (c) Where – was it at this hospital? (d) Are you the most experienced surgeon in this hospital on this procedure? (e) Who else will be in the OR with you? (f) If I don’t want students or residents as part of the procedure, can I say no? (g) Aside from death – what are the worst complications you have ever seen? (h) How many other surgeries will you have that day? (i) How long do you expect the surgery to take? (j) Is there someone else in this region who you think has more experience than you?
  5. ASK FOR A REFERRAL. If you don’t feel comfortable with the above answers, and your surgical need is not emergent – ask for a referral to a more regional hospital system. I would have far fewer clients and cases if families asked direct questions, and doctors were honest about their lack of experience in some areas. So sure, it might make a professional uncomfortable for a minute when you question their experience, but I promise, no real professional will be bothered.

So, I understand how it feels you didn’t really have a choice in your surgeon or doctor, or provider. But don’t forget – your body needs you as an advocate. Ask the hard questions, do some basic research and you might find a few red flags that point you in a new direction.

I don’t want you to become a patient. If you do, it means someone failed to provide adequate care, and their negligence caused permanent injury that would not have existed but for their really bad care.

Better to ask questions now, than regret it later.

What can hospitals and doctors charge for copies of medical records?

April 7, 2015

The question of what hospitals and doctors can charge for copies of medical records is a hot topic for patients and their attorneys who are considering medical malpractice and negligence cases.  The records are obviously essential to a medical malpractice investigation.

More and more providers are using third-party vendors, like HealthPort, to process requests for medical records, and we are seeing more and more trouble with this process.  The trouble relates to three main issues: 1) the time it takes for patients to receive copies of their records, 2) what they are charged, and 3) receiving incomplete or incomprehensible records.


time-is-money-300x277In Virginia, providers have 15 days to provide copies of requested medical records to patients and their attorneys.  It is important to keep evidence of when you submit your written request for records, because when we follow-up after 15 days has passed, providers and third-party vendors like HealthPort often claim they never received the request.


The second problem is how much patients get charged for copies of their medical records.  Virginia law allows providers to charge for paper copies, generally $0.50 per page up to 50 pages and then $0.25 per page after that.  They may also charge for postage and shipping costs and a search and handling fee of not more than $10.  For electronic copies, providers can charge a “reasonable” cost-based fee, but what that amounts to is not set out specifically.

My most recent battle about charges for medical records involved records produced on one CD in .pdf form.  The charge: $1,940 for the CD.  The vendor also charged our client $83.20 to ship the CD to us by regular mail through the postal service.  The actual shipping cost was $1.85, as reflected on the shipping label.

As a practical matter, providers sometimes do not charge patients for copies if the patients request the records themselves, but almost always charge attorneys who request the records for their clients.

Completeness and Clarity

The third problem is when records are not complete and/or they are produced in a way that makes them incomprehensible.  It is mostly electronic records that appear incomprehensible.  They can run on and on like toilet paper with no clear delineation between providers, notes, dates, etc.  They sometimes have tables and graphs without reference points, they are not grouped by type of note or procedure, they are not in chronological order, and/or the page numbers are incorrect.  We see at least one of these problems with almost every set of records we get.

We also sometimes receive incomplete sets of records despite requesting “the complete medical record.” image courtesy of We have not been able to determine exactly why records from the same facilities and processed by the same vendors can look so different.  These things seem to happen more when third-party vendors are involved.  It may just be the luck of the draw as to which employee happens to process the request and how that employee was trained.  

Two identical requests that land in the hands of two different employees can produce very different sets of records.  We see this frequently enough that we have developed strategies to combat it, but we have not been able to prevent it all together.

In case there is any question about how frequently these problems occur, just since I began this post, I have dealt with these issues twice.  I received an email about a client who has been unable to get her medical records despite a proper request, the passage of more than 15 days, and a promise from the vendor that they shipped the records to her more than a week ago.  I also received a call from a hospital’s medical records department instructing me that they do not accept records requests by fax from attorneys, but will accept faxes from our clients.

How to Help

We appreciate clients who take an interest in and actively help with their cases, but if you are considering a medical malpractice case, get an attorney involved early to help you navigate these potential snafus.  Speaking from experience, it can save you and your attorney a lot of time, money, and headaches, something everyone appreciates!


Lauren E. Davis at Frith & Ellerman Law Firm in Roanoke, Virginia is an experienced personal injury, medical malpractice, and nursing home negligence attorney serving Virginia.

Learn more about our services at or call us at (540)985-0098.