Introduction
Not every lesson in this field comes from winning a case. Some of the most useful ones come from defending a chart in the first place.
In 2019, as Ramesh “Sunny” Balwani prepared his defense against SEC and federal criminal fraud charges tied to Theranos, his legal team sought to compel my Arizona women’s health clinic to hand over private patient lab results and records. A U.S. magistrate judge in San Jose rejected the request, ruling that it imposed an unwarranted financial cost and invaded patient privacy. That ruling is a matter of public court record.
I bring this up not to relive a difficult chapter, but because it taught me something that now shapes every case I take on for malpractice attorneys: medical records are not just evidence. They are also a target. In any high-stakes litigation, opposing counsel will look for ways to access, discredit, or muddy the record — and how those records are handled from day one can determine whether they hold up.
What Actually Happened
The Request
Balwani’s attorneys sought laboratory results and records connected to my clinic as part of building his defense in the criminal and SEC cases against him. The clinic pushed back, characterizing the requested material as private patient data that had no legitimate bearing on his defense.
The Ruling
The presiding magistrate judge sided with the clinic, finding that compelling the records would impose both a real financial burden and a privacy intrusion on patients who were not parties to the case. The request was denied.
The Broader Pattern
The clinic also described a pattern of aggressive pressure connected to the dispute — public court filings characterized the conduct as harassment. Whatever the characterization, the underlying lesson for litigators is the same: when medical records become central to a high-stakes case, someone on the other side may try to get at them, discredit them, or use discovery requests to fish for anything that weakens your position.
Why This Matters for a Malpractice Case
Malpractice litigation runs on the same dynamic, just at a smaller scale. Once a chart becomes central to your case, you can expect the defense to:
- Push for broader discovery than the case actually requires
- Look for any handling error — a missing chain of custody, an unsealed record, a shared file — to challenge authenticity
- Argue that outside review of the chart was improperly influenced, incomplete, or biased
How a Flat-Rate Forensic Review Protects the Record, Not Just Reads It
A proper flat rate chart review isn’t just about finding the smoking gun in the file — it’s about handling the record in a way that survives scrutiny:
- Duplicate hard copies and secure digital repositories, so the original chain of custody is never put at risk
- HIPAA-secure intake and consultation calls, keeping sensitive patient information off unsecured channels
- A documented, physician-level review process, so if the methodology is ever questioned, there’s a clear, defensible record of how conclusions were reached
- A non-testifying structure, which keeps the underlying analysis further insulated from the kind of broad discovery fight that played out in the Balwani case
What Attorneys Should Ask Before Sending Records to Any Reviewer
Before handing over a malpractice file — to a legal nurse, an expert, or a forensic reviewer — it’s worth asking:
- How is chain of custody documented and maintained?
- Is patient data transmitted and stored in a HIPAA-compliant way?
- What happens to the physical and digital records after the review is complete?
- Is the reviewer’s process itself defensible if opposing counsel challenges it?
These aren’t hypothetical concerns. As the Balwani discovery fight shows, a well-resourced opposing party will look for any opening — including the records themselves — if the case is contentious enough.
Frequently Asked Questions
Can opposing counsel subpoena records reviewed by a non-testifying consultant? Generally, a non-testifying consultant’s work product receives more protection from discovery than a testifying expert’s, though the underlying medical records themselves may still be subject to normal discovery rules. This varies by jurisdiction, and attorneys should confirm the specifics for their case.
What happens to my client’s records after the flat-rate review is complete? Records should be handled under a clear, HIPAA-compliant retention and return/destruction process — this is worth confirming with any reviewer before records are sent.
Why does chain of custody matter for a medical malpractice case? If the authenticity or handling of a record is challenged, a documented chain of custody can be the difference between an exhibit the jury sees and one that gets excluded.
Does a flat-rate review reduce discovery exposure compared to a testifying expert? It can. Because the consultant is non-testifying, their internal analysis is typically shielded differently than a testifying expert’s report — though the records themselves remain subject to ordinary discovery obligations regardless of who reviews them.
Conclusion
The fight over my clinic’s patient records during the Balwani case wasn’t part of a malpractice lawsuit, but it captures exactly the kind of pressure a chart can come under once it matters to a case. Attorneys who treat their medical records with the same rigor — secure handling, documented process, and a non-testifying review structure — are protecting more than their evidence. They’re protecting their case.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. The discovery dispute described is drawn from public federal court records and news reporting from 2019; discovery and privilege rules vary by jurisdiction and should be independently confirmed by counsel for any specific case.