Tuesday, March 24, 2009

Health Care Provider's Duty To Produce Patient's Medical Records

One of the common questions we receive is what rights patients have to see and receive copies of their records or to have the records transferred to another health care provider and what costs can be charged.
The law on this issue is governed by California Health & Safety Code Section 123100 through 123149.5 establishes a patient's right to see and receive copies of his or her medical records, under specific conditions and/or requirements as discussed below.

Who Does This Law Apply To? These regulations govern: health facilities, clinics, home health agencies, physician and surgeons, dentists, podiatrists, psychologists, optometrists, chiropractors, clinical social workers, marriage and family therapists, and physical therapists. For other health care professionals not specifically governed by these regulations, it is a guide on what to do. By following them, one can be confidant that there should be no issue with any Board or Bureau.

Section 123110 of the Health & Safety Code specifically provides the following about patients inspecting or copying their records (including telemedicine records):

Inspection of Records - Right To "Inspect" Within 5 Working Days
(1) Any adult patient, or any minor patient who by law can consent to medical treatment (or certain patient representatives), is entitled to inspect patient records upon written request to a physician and upon payment of reasonable clerical costs to make such records available.
(2) The physician must then permit the patient to view his or her records during business hours within five working days after receipt of the written request.
(3) The patient or patient's representative may be accompanied by one other person of his or her choosing.
(4) Prior to inspection or copying of records, physicians may require reasonable verification of identity, so long as this is not used oppressively or discriminatorily to frustrate or delay compliance with this law.

Inspection is different than copying the records which is discussed below. Thus, the timeframe for inspection is shorter for inspection than copying (which is 15 days).

Transfer of Records To Other Providers - Not Covered By Law
The request to transfer medical records is not covered by law and is considered a matter of "professional courtesy." No statutes cover record transfers and there is no set protocol for transferring records between providers. Generally, physicians will transfer records without charging a fee; however, some doctors do charge a fee associated with copying and mailing the paperwork. Physicians will require a patient to sign a records release form to transfer records.

Copying Records - Costs Can Be Charged And Production Must Be Within 15 DaysThe patient or patient's representative is entitled to copies of all or any portion of his or her records that he or she has a right to inspect, upon written request to the physician. The physician may charge a fee to defray the cost of copying, not to exceed 25 cents per page or 50 cents per page for records that are copied from microfilm, along with reasonable clerical costs.

By law, a patient's records are defined as records relating to the health history, diagnosis, or condition of a patient, or relating to treatment provided or proposed to be provided to the patient. Physicians must provide patients with copies within 15 days of receipt of the request. If there is an emergency or urgent reason why the records need to be copied immediately, it would be a good practice to produce the records immediately.

Copies of x-rays or tracings from electrocardiography, electroencephalography, or electromyography do not have to be provided to the patient or patient's representative if the originals are transmitted to another healthcare provider upon written request of the patient and within 15 days of receipt of the request. A patient may request to purchase copies of his or her x-rays or tracings. All reasonable costs, not exceeding actual costs, may be charged to the patient or patient's representative.

Note: Make sure the entire patient chart has been copied. It is a good practice to have the health care provider review the file before it is released. We have seen cases where one of the issues at the disciplinary board is that records were created after production of records to the patient. In some cases, it was simply that the entire file was not copied and produced to the patient.

Summary Of Record.
A physician may choose to prepare a detailed summary of the record pursuant to Health & Safety Code section 123130 rather than allowing access to the entire record. This summary must be made available to the patient within 10 working days from the date of the patient's request. If more time is needed, the physician must notify the patient of this fact and the date that the summary will be completed, not to exceed 30 days between the request and the delivery of the summary.
If the patient specifies to the physician that he or she is interested only in certain portions of the record, the physician may include in the summary only that specific information requested. The summary must contain information for each injury, illness, or episode and any information included in the record relative to: chief complaint(s), findings from consultations and referrals, diagnosis (where determined), treatment plan and regimen including medications prescribed, progress of the treatment, prognosis including significant continuing problems or conditions, pertinent reports of diagnostic procedures and tests and all discharge summaries, and objective findings from the most recent physician examination, such as blood pressure, weight, and actual values from routine laboratory tests. The summary must contain a list of all current medications prescribed, including dosage, and any sensitivities or allergies to medications recorded by the physician.

Failure to Comply With Regulation Can Constitute Unprofessional Conduct And An Infraction: Any health care provider who willfully violates the regulations set forth above is guilty of unprofessional conduct. Further, any health care provider who willfully violates these regulations is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100). The state agency, board, or commission that issued the health care provider's professional or institutional license shall consider a violation as grounds for disciplinary action with respect to the licensure, including suspension or revocation of the license or certificate.
If the patient has followed the requirements outlined in the Health & Safety Code and the physician has not complied with the request, the Medical Board allows patients to file a complaint. The physician will be contacted to determine the reason for failing to provide the patient with access to his or her medical records.

Exceptions: There are some exceptions to the absolute requirements shown above:

Minor's Records Exception. A physician may refuse the request of a minor's representative to inspect or obtain copies of the minor's records if a physician determines that access to the patient records requested by the representative would have a detrimental effect on the physician's professional relationship with the minor patient or the minor's physical safety or psychological well-being.

Mental Health Records Exception: A physician may refuse a patient's request to see or copy his or her mental health records if the physician determines there is a substantial risk of significant adverse or detrimental consequences to the patient if such access were permitted, subject to the following conditions:
The physician must make a written record and include it in the patient's file, noting the date of the request and explaining the physician's reason for refusing to permit inspection or provide copies of the records, including a description of the specific adverse or detrimental consequences to the patient that the physician anticipates would occur if inspection or copying were permitted.
The physician must permit inspection or copying of the mental health records by a licensed physician, psychologist, marriage and family therapist, or clinical social worker designated by the patient. These healthcare providers must not then permit inspection or copying by the patient. The physician must inform the patient of the physician's refusal to permit the patient to inspect or obtain copies of the requested records, and inform the patient of the right to require the physician to permit inspection by, or provide copies to, the healthcare professionals listed in the paragraph above. The physician must indicate in the mental health records of the patient whether the request was made to provide a copy of the records to another healthcare professional.

Compliance: Your office should have policies, procedures and forms governing this area. Office staff should have to follow these policies so there can be little confusion as to how to respond to patients' requests for records. There should be patient consent forms and the production of records should be document to the patient or his or her representative or subsequent health care provider. It would be a good idea to have the package of forms and rules reviewed by a health care attorney for accuracy. We have seen failure to produce records or delays result in professional complaints especially when they are mishandled.
Sometimes issues arise when the patients get demanding about immediate production at or about the time the statute of limitations is about to run for any professional negligence claim. If your office staff suspects that the reason why the file is needed is for a professional negligence claim, remain professional and ensure that the file is completely copied. If there are any records missing, indicate that during the production in writing. Seek independent counsel to ensure that your office is handling it all in a professional manner that is good risk management and will not come back to haunt you later.

Any questions or comments should be directed to: tgreen@greenassoc.com. Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals and businesses in civil, business, administrative and criminal proceedings, with a specialty in health care providers.

Phone: 213-233-2260
Email: tgreen@greenassoc.com


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