Obtaining Medical Records In A Pending Litigation

10/01/15

For some people, obtaining their own full medical records from health care providers can be harder than one might think, especially when providers smell a pending litigation in the air. Though the law places a legal obligation on providers to refrain from disclosing health records to protect a patient’s privacy, it also protects a patient’s right to have access to her own medical records. This right is even more protected by the law in a litigation setting. Thus, providers may be reluctant to release records in certain situations, but must ultimately furnish them to the patient or the patient’s attorney depending on the circumstances.

When health records are to be used as evidence, Virginia Code Section 8.01-413(B) states that providers shall (meaning that they must) furnish the medical records to the patient, her attorney, executor, administrator, or authorized insurer within fifteen (15) days of the date of the written request. If the provider fails to comply with any written request, a patient, her attorney, her administrator, or authorized insurer may issue a subpoena duces tecum to compel the records.

However, there are exceptions that prohibit providers from handing over full medical records to the requesting patient. If the physician notes in the records that it is his or her professional opinion that the information in the records could endanger the patient, or if the record makes reference to another person and releasing the full record would substantially harm that person, then the provider cannot furnish the full medical record to the patient personally. The patient has the option to have the full record sent to another provider in the same profession in order for that provider to decide whether the patient should receive the full record. Nevertheless, such records must be furnished to the patient’s attorney within fifteen (15) days of the date of the written request.

If a court finds that the health care provider willfully refused to comply with a written request, either by willful or arbitrary refusal or by charging an unreasonably high fee to process the patient’s request, the court may award damages to the patient for all expenses incurred to attain the record, including reasonable attorney’s fees and costs.

In Mansoor v. Favret, 55 Va. Cir. 302 (2001), a patient properly requested on multiple occasions that his provider produce his medical records, in connection with a pending litigation. The provider failed to timely respond to each request, and evaded responding by redirecting the requests elsewhere. The provider also refused to send the full record to the patient’s personal physician. Consequently, the patient obtained a subpoena duces tecum, which the court granted. The provider waited until right before the deadline of the subpoena before complying and issuing a full response to the patient’s request. The provider expressed concern with producing sensitive information, and refused to provide information even to the patient’s attorney. The provider thereafter continued to postpone and evade responding to requests for specific information and the patient ultimately filed a Motion for Attorney’s Fees and Costs.

The court found that in light of the circumstances, the provider willfully failed to provide the medical records. She was familiar with the applicable laws before any requests were made by the patient and still refused to comply. Her concerns about producing sensitive information were not previously voiced when she suggested that the patient obtain the records elsewhere. Regardless of whether the provider’s concerns were legitimate, she knew that the law requires her to provide the records to the patient’s attorney. Her repeated violations of the applicable law, her inconsistent and insufficient defenses for ignoring it, and her refusal to produce the requested documentation amounted to a willful refusal to comply with the patient’s requests. As a result, the court awarded attorney’s fees and costs to the patient.

It is important for patients, medical providers, and attorneys to know the applicable laws regarding document production of medical records for litigation purposes in order to avoid unnecessary collateral disputes and cost accumulation. Thus, keep in mind that providers are entitled to use their professional judgment when a patient requests her records, but must nevertheless provide all requested documentation to a patient’s attorney regardless of the provider’s concern for privacy.

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