Requesting medical records is one of the most important aspects of the medical malpractice field. As an attorney, you want to be sure you are requesting the correct information, in the correct manner, and getting the correct information back. For these reasons, we have compiled a list of things to consider when you are requesting information from a healthcare organization.
I. Review the Healthcare Organization’s Release of Information
First, it is imperative that you review the specific healthcare organization’s release of information (ROI) form. This should be easily accessible from the organization’s website. This is important because it may give insight into the organization’s policies and procedures when it comes to release of information. Although healthcare organizations must follow the provisions in HIPAA when responding to requests for information, they may have additional requirements that must be met in order for them to release the information. The release of information can be used as a checklist to ensure you comply fully with the healthcare organization’s requirements for requesting information, which may eliminate denials or further time delays in receiving your clients medical record.
II. Request Your Client’s Full Medical Record
Second, you want to be sure you are not receiving a “legal” medical record. A legal medical record is a template created by the hospital that allows them to limit what they provide. For this reason, a legal medical record does not always provide the patient’s full record and may have many portions of the record left out. Thus, you should explicitly request client’s full and complete medical record. For example, when you review the ROI form in step 1, you might learn that you should specify for the full record to include:
III. Beware of Third-Party Medical Record Companies
Third, it is important that you do not receive your client’s medical record from a third-party medical record company, such as CIOX or MRO. These companies do not have complete access to your client’s full medical record. In fact, oftentimes they are only provided a portion of the patient’s medical record. Thus, it is more likely that you will receive incomplete records. In your request for your patient’s medical record, in addition to requesting the entire record as stated above, be sure to state explicitly that you do not want the record produced by a third party.
IV. Request Records in Electronic Format
Fourth, request your records in an electronic, searchable format. Your client has a right to such a format. 45 CFR 164.524(c)(2) states that the healthcare organization must provide the requested information in the form or format as requested, if it is readily producible in that format. Furthermore, 45 CFR 164.524(c)(2)(ii) states that when a patient requests electronically maintained Personal Health Information (PHI), the healthcare organization is required to produce the information in the electronic form or format requested by the patient/personal representative.
Requesting your client’s medical record in an electronic, searchable format is useful for a number of reasons. First, paper records – even ones that were printed and scanned from a computer – are often difficult to read and leaves more room for omission errors. For instance, the medical record often includes different colored fonts for different sections. This can clue you into information regarding out-of-range results. Second, an electronic record can be searchable which will allow for easy navigation through your client’s hundreds or thousands of pages of records. Third, when documents are produced electronically, it is easier to identify and trace the custodianship of the document. Thus, when requesting your client’s medical record, be sure to request it in an electronic, searchable format.
V. Be Aware of Costs
Finally, be aware that healthcare organizations are allowed to charge a cost-based fee for producing the requested health information. Under 45 CFR 164.524(c)(4), healthcare organizations are allowed to charge the patient only for labor of producing information, supplies, postage, and preparation of expert summaries of protected health information. However, what a healthcare organization can charge an attorney for requesting medical records is different. Healthcare organizations do not have to follow the above HIPAA requirement with regards to third parties and attorneys. Instead, states determine what the appropriate charges are for requesting medical records. For example, in Colorado, a healthcare organization may charge a third party a “reasonable fee” which, among other things, may not exceed $18.53 for the first ten pages, 85 cents per page for the next thirty pages, and 57 cents per page for each additional page. This seemingly applies to paper records, whereas electronic records should only incur electronic media costs. Thus, requesting records electronically can be more cost effective depending on state law. Regardless, it is important that you review your state’s statutes regarding third party fees for requesting medical records.
VI. Medical Record Request Checklist
In summary, there are several considerations to remember when requesting your client’s medical information.
Review the healthcare organization’s Release of Information Form
Review the policies and procedures relating to release of information
Request your client’s full medical record explicitly stating everything you expect to be included in the record.
Request your client’s medical record, and all other health information, in an electronic, searchable format.
Be knowledgeable on your jurisdiction’s fee regulations.
Requesting your client’s medical record is just the beginning of discovery in any medical malpractice case. To learn more about requesting electronically stored information (ESI), visit EMR Discovery.