The basic rule is easy to state: Every person is entitled to a copy of their own medical records. If you want to get a second opinion or consult with another doctor you need a copy of your medical records. If you are thinking of bringing a personal injury lawsuit then you need a copy of your medical records to show your lawyer.
Again, the basic rule is easy to state: You sign a HIPAA form and you get your records. Unfortunately life is never that simple. HIPAA is the acronym for the Health Insurance Portability and Accountability Act that was passed by Congress in 1996. A HIPAA form is available from your medical provider, from your attorney, or by simply typing HIPAA into Google and the form will come up.
After you sent in your HIPAA form to your medical provider to get a copy of your records you may first get a bill from the medical provider charging you for copying the records. The medical provider, under the law, may charge a fee to cover the cost of copying the records.
More often than not you send in your HIPAA form to your medical provider and then nothing happens. Why not?
There are many reasons you may not get a response to your request. The medical provider is just so busy and does not want to waste his or her time in copying and sending you the records. The medical provider is understaffed and has a serious backlog of medical records that need to be copied and sent out
The medical provider may be concerned that the patient wants their records because the patient may be in the process of going to a different doctor. Or, even worse, the medical provider is concerned that the patient may be looking into possibly bringing a medical malpractice lawsuit and needs the records to show to another doctor or to an attorney.
When you hire an attorney to bring a personal injury case on your behalf the first thing that attorney needs to do is gather all of your medical records. The attorney does this by having you sign HIPAA forms and then sending the forms to the various medical providers. When a medical provider gets such a request from an attorney, rather than from the patient, the medical provider may get concerned that the attorney is looking into bringing a medical malpractice lawsuit.
There are Federal laws as well as laws in every State that deal with medical records. The HIPAA Privacy Rule (45 CFR Parts 160 and 164) provides the first comprehensive Federal protection for the privacy of health and mental health information. Basically, a covered entity must provide individuals (or their personal representatives) with access to their own medical records. There are both civil and criminal penalties that can be imposed for the failure to provide the medical records. Unfortunately, the in my experience very little is done to a medical provider that refuses or delays in providing records.
In New York State Section 18 of the Public Health Law applies to records maintained by health care facilities licensed by the Department of Health. These include hospitals, home care facilities, hospices, health maintenance organizations and shared health facilities. Its provisions also apply to health care practitioners, including physicians, physician assistants, specialist assistants, audiologists, chiropractors, dentists, dental hygienists, midwives, occupational therapists, optometrists, ophthalmic dispensers, physical therapists, physical therapist assistants, nurses, podiatrists, psychologists, social workers and speech pathologists. The law describes such facilities and practitioners as "providers."
This law permits access by "qualified persons". "Qualified persons" include the patient or an incapacitated adult patient's legal guardian and also the executors and administrators of estates of deceased patients, and if there is no will, the distributees of the estate under the Estates, Powers and Trusts Law. An attorney representing a "qualified person" is also a "qualified person," provided that the attorney has a signed power of attorney authorizing the attorney to request medical records.
Section 18 requires that within 10 days of a written request for access to records, the provider must give the qualified person the opportunity to inspect the records. Providers must also provide copies of records if copies are requested. Providers are permitted to charge reasonable fees to recover costs for inspections and copying. However, a qualified person cannot be denied access to information solely because of inability to pay.
So there are Federal as well as State laws that entitle you to get your medical records. However, no one seems to be willing to do anything to enforce the law or punish those health care providers that simply refuse to provide records to their patients.
So what can you do if your health care provider is not providing you with a copy of your records?
In New York you can call the Health Dept. as well as the NY State Education Dept., which licenses health care professionals. In my experience they may actually pick up the phone and call the health care provider and try to get them to send you your records, and sometimes, unfortunately, will not do anything to assist you.
If you have an attorney representing you in a personal injury case the attorney can ask a Judge to force the health care professional to provide a copy of your medical records. Once you have a Court Order you will get the records.
You need to also be aware that it is a good idea to also have a copy of all of your important films, X rays, CT scans or MRIs. If you are requesting your records from a hospital you need to request your medical records from the “Medical Records” department, and then your films from the “Radiology” department.
If you are requesting your medical records after a long stay the records may be voluminous, I have seen records that are 5000 or more pages. This can be very costly if the hospital gives you a “hard” copy and charges you by the page. You should request your records on a computer disc and it is not only easier for you to make copies and carry around but the copying charge is also very limited.