The basic rule is easy to state: Every person is entitled to a copy of their medical records. If you are thinking of bringing a personal injury case then you need a copy of your medical records to show your lawyer and to document your injury. If you want to get a second opinion or consult with another doctor you need your medical records.
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, your attorney or by simply typing HIPAA into Google and the form will come up.
So you send in your HIPAA form to your medical provider and expect to get a copy of your records. You may first get a bill for copying the records from the medical provider. 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 nothing happens. Why not?
There are many reasons you may not get a response to your request. The medical provider is busy and does not want to waste his or her precious time in copying and sending you the records. The medical provider is concerned that the patient may want the records because the patient may be in the process of switching medical providers. Or, even worse, the medical provider gets concerned that the patient may be looking into bringing a medical malpractice lawsuit and wants to show the records 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 does is try to 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 often the medical provider gets concerned that the attorney may be 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 reality is that 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.
The New York Times on January 17th, 2016, published an article dealing with this issue, entitled, “New Guidelines Nudge Doctors on Giving Patients Access to Medical Records”. This articles’ first paragraph states “The Obama administration is tearing down barriers that make it difficult for patients to get access to their own medical records, telling doctors and hospitals that in most cases they must provide copies of these records within 30 days of receiving a request.” Then in the next paragraph it continues, “In theory, patients have long had a right to obtain copies of their records, but federal officials say they receive large numbers of complaints from consumers frustrated in trying to exercise that right.”
Will this “nudge” by the Obama administration actually tear down the barriers and make it easier to get your records. Although I would like to think so the reality is that without some actual penalties and some governmental agency willing to do something to enforce the law and punish those health care providers that simply refuse to provide records to their patients nothing will change.
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 sometimes they will 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 help you.
If you have an attorney representing you in a personal injury case the attorney can bring on a Motion and ask the Court to force the health care professional to provide a copy of your medical records.
If you or a loved one were injured and are in need of legal assistance, call Jaroslawicz & Jaros at , or toll free in New York 800-269-2780, or submit an online questionnaire. The initial consultation is free of charge, and if we agree to handle your case, we will work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. Please call to ensure that you do not waive your right to compensation. Or you can email us at [email protected].
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