Medical Records and Rule 26 Expert Disclosures

by | Apr 21, 2022

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:

How to properly obtain medical records

Reviewing and Organizing Medical Records

Obtaining electronic medical records (EMR)

Medical Records in Depositions and at Trial


Lorman Distinguished Faculty Member

We've Helped Thousands of People Just Like You

We are known for getting life-changing results and fighting to make our communities safer.

Why Choose Us As Your  Attorney?

With us on your side, you can focus on what’s most important – your recovery.

Decades Of Experience

Decades Of Experience

Our Nashville personal injury attorneys have over 75 years of combined practice handling cases involving personal injury, medical malpractice, civil rights, medical device lawsuits, wrongful death, and more.

Excellent Reputation

Excellent Reputation

DRS Law is a well-respected personal injury law firm based in Nashville. Our lawyers have  been selected as a Mid-South Super Lawyer, named one of the Top    100 attorneys in Tennessee in all fields of practice, and is included in the Best Lawyers in America guidebook.

Small Case Volume

Small Case Volume

Unlike many Nashville firms that handle a large volume of cases, we concentrate on a select few cases. With this, our attorneys ensure that every step is taken to obtain the most favorable outcomes for our clients.

We Prepare For Trial

We Prepare For Trial

Every case is meticulously prepared for trial by our trial team and support staff in order to maximize the recovery for our client, whether by settlement or trial verdict. Our proven track record of success has resulted in multi-million-dollar settlements and judgments.

Get Your Free Consultation

Click Here to Submit Your Case