Pre-Action Discovery

“I believe my mother was mistreated in her nursing home before she passed away. I have tried to obtain my mother’s medical records to find out what happened, but the nursing home is giving me the run-around. Can I sue for wrongful death for my mother?”

Your instincts were absolutely correct when you tried to obtain your mother’s medical records. Unless you were at the nursing home full time and have a medical background, there is no way to really know what happened to your mother in the nursing home. The medical record is a very good place to start because the record usually contains clues about your mother’s physical condition before she passed away.  From those clues about her physical condition, you might be able to make inferences about what happened to her in the nursing home before she passed away.

If you are the fiduciary for your mother’s estate, you have an absolute right to her medical records.  If the nursing home will not give you a copy of her records upon presentation of a HIPPA conformed authorization and the fee for copying said records ($.75 per page is allowed by law, under PHL  17), then you can bring an action in Supreme Court for pre-action discovery under CPLR 3102(c).  Essentially you are asking a judge to make an order compelling the nursing home to release your mother’s records.  If the nursing home still does not release the records after you get a court order, then the nursing home is in contempt and the judge can start coercing the nursing home to turn over records. The judge has a number of options for parties in contempt starting with monetary penalties.

Once you get the medical record, unless you are in the medical field, you will have to hire a forensic medical expert to review the medical records to determine if your mother was mistreated in the nursing home.