Overcoming Roadblocks to Getting Your Medical Records

Overcoming Roadblocks to Getting Your Medical Records
Oct 8, 2019

In our work helping catastrophically injured clients recover fair compensation for their injuries, we’ve often been told by our clients that they can’t get access to their medical records. We can understand and relate, as sometimes we encounter roadblocks when trying to get our clients’ medical records. Luckily, we have a skilled team of professionals who are ready to overcome those roadblocks and get those medical records. In this blog post, we will list some of the misconceptions and roadblocks our clients have encountered, and will provide you with the facts to help you overcome these roadblocks.

“I’m the Doctor and I own the medical record – you can’t have it.”

Sometimes a doctor or hospital will outright refuse to provide her patient with a copy of her medical record, saying that the medical record belongs to the doctor. This is against the law. Georgia law does state that records are owned by the medical provider. However, O.C.G.A. § 31-33-2(a)(2) requires a provider to give you a copy of your medical record. Federal law also gives patients a right to their medical records.

“I can’t give you your dead wife’s medical records, unless you have a HIPAA authorization from her saying you can have them.”

We represent many clients who’ve experienced the death of a loved one due to negligence. After some time has passed, they often wonder, “why did this happen” and they naturally begin to investigate. They may want to get their loved one’s medical records, but the provider refuses saying they need a HIPAA authorization from the patient. Of course, the patient is deceased and is not in a position to give them a HIPAA because he/she is dead.

Fortunately, Georgia law deals with this scenario. O.C.G.A. § 31-33-2(a)(B) states that if a person is dead, the following people can request the dead person’s medical records: (1) The executor, administrator, or temporary administrator of the estate of the person who passed away; ( 2) the surviving spouse if there is no estate representative; (3) if no surviving spouse or estate representative, any surviving child; (4) and if no estate representative, surviving spouse or surviving children, any parent. This is also supported under federal law. See 24 CFR 164.502(g).

Therefore, in our example above, the husband can request the medical records of his deceased wife under Georgia law.

“Your medical records are 1,000 pages long, and it’s going to cost $550 to copy and ship you those medical records!”

As we all know, more and more healthcare providers are relying on electronic medical records. Even when doctors still use handwritten notes, the notes are often scanned and kept by the doctor’s office electronically. As we’ve previously written, you can often get an electronic copy of your medical records via PDF for $6.50. If the medical records are maintained by the healthcare provider electronically, an individual has a right under federal law to receive that information electronically. Even in a scenario where the doctor’s office uses paper copies, if it has available scanners to scan the medical records, then it has the ability to “readily produce them electronically” and is required by federal law to do so. Only in a scenario where the records are not maintained electronically, nor does the medical provider have the ability to scan and produce them electronically, are “readable” hard copies allowed. Even then, the provider can only charge a reasonable, cost-based fee, which only includes: (1) labor for coping the medical records; (2) supplies for creating the paper copy; and (3) postage, if the patient request the records be mailed (you can always go and pick up your records to avoid postage). See generally, 45 CFR 164.524.

“Your records are archived, and it’s going to take us 2 years to get them to you.”

Generally in Georgia, you have 2 years from the date of an injury to bring a personal injury action, such as medical malpractice. Knowing this, some healthcare providers will try to drag their feet wanting to provide you as little time as possible to fully investigate whether you have a possible claim. However, federal law is clear, the healthcare provider must act on a request within 30 days after receipt of the request. 45 CFR 164.524(b)(2). If for some reason it cannot complete the request in 30 days, it can have an additional 30 days, but it must: (1) within the first 30 days of the request provide the patient with a written statement of why there will be a delay and the date by which it will respond; and (2) it can only have one 30 day extension. 45 CFR 164.524(b)(2)(B).

“I will send give you your records electronically for $6.50, but if you want me to send them to your lawyer, it’s $750!”

We often use the HITECH act to order our clients’ records because while we pay all expenses on a case as they are incurred, ultimately our clients’ will reimburse us our costs when we recover compensation from them. Therefore, we want to be good stewards of our clients’ money, and if we can get their records for $6.50 instead of $750, that saves our clients’ money at the end of the case. The HITECH act requires that the request come from the patient, our client, in writing with his/her signature and clearly identify the designated individual and entity, and where to send. However, the HITECH act allows the patient to designate that the records be sent to another individual or entity. Thus, the HITECH request can ask that the electronic records be sent to us as the patient’s attorneys, and the provider cannot then charge a different fee.

At Warshauer Woodward Atkins, we have a talented team of professionals who have experience investigating catastrophic injury cases to determine whether you have a valid claim for compensation. If you believe you or a loved one have been catastrophically injured due to someone else’s negligence, please give us a call for a free consultation.