What if a doctor refuses to produce copies of medical records?

1. What do you do if a doctor or other healthcare provider refuses to produce copies of medical records? The answer depends on whether you represent the patient or if you represent an adverse party. If you represent the patient, you are entitled to copies of the patient’s records, provided that you cover the costs of copying the records. Health & Safety Code §123110(b) provides that “any patient or patient’s representative shall be entitled to copies of all or any portion of the patient records that he or she has a right to inspect, upon presenting a written request to the health care provider specifying the records to be copied, together with a fee to defray the cost of copying, that shall not exceed twenty-five cents ($0.25) per page or fifty cents ($0.50) per page for records that are copied from microfilm and any additional reasonable clerical costs incurred in making the records available. The health care provider shall ensure that the copies are transmitted within 15 days after receiving the written request.” Health & Safety Code §123110(b). While working on the plaintiff side, I recall two situations where the provider’s office dragged their feet, prompting further action. In one case, the doctor we contacted no longer had an active practice and did not list a working telephone number. The only address listed for the doctor was the address we sent our requests to. This utter lack of resources left us with no reasonable alternative but to seek assistance from the Medical Board of California. The Medical Board of California is a very good resource when looking to get the attention of a non-responsive healthcare provider. However, it is always good practice to make multiple good faith attempts to contact a professional before getting his or her licensing agency involved. This means taking the time to call and sending correspondence via facsimile, mail and registered mail. This way, you cover all your bases, in the event that an ineffective receptionist or assistant is the cause of the breakdown in communication. However, if the provider is still incommunicado, follow this link to the appropriate complaint form http://www.mbc.ca.gov/Forms/07i-61.pdf and check the box “Office Practice(e.g., Failure to Provide Medical Records to Patient, Failure to Sign Death Certificate, Patient Abandonment)” under the section that says “Nature of Complaint.” Complete the remainder of the form and send via certified mail or other mode of trackable mail. Three weeks after filing the complaint regarding the missing doctor, the doctor called and sent all the records via FedEx on his own dime. The case involved a neurologist with a very busy practice. After a couple of failed attempts by our secretaries, I took the reigns and began to call her office myself. I called numerous times and recorded the names of each office clerk I left a message with. I drafted a letter addressed to the doctor explaining that we needed the requested records forthwith, that I called a dozen times, and that we will report her to the Medical Board if she continues to ignore us. I faxed the letter and sent copies via regular and certified U.S. Mail. Unfortunately, she continued to ignore us, and a complaint with the Medical Board followed. Two weeks later, the

2. doctor’s office faxed the requested records six separate times (either to waste our paper or to make sure we got them). Since the Medical Board obviously has teeth, again, in the spirit of courtesy, please try to contact the healthcare professional yourself before resorting to a formal complaint. But what do you do if you represent a defendant and a doctor refuses to comply with a subpoena? If you believe that plaintiff’s attorney and/or the plaintiff (i.e. the “consumer”) is more likely to throw the proverbial wrench into the gears of discovery, you are correct. However, this is not always the case. One quiet afternoon in May 2016, my secretary walked in to drop off a stack of mail. As she made her way to my inbox, I could not help but notice her trying to keep a straight face and hide her big, wry smile. This was not an ordinary stack of mail; she had a surprise and was going to get a kick out of my animated reaction. When we finally made eye contact, she smiled and immediately spilled the beans. “A doctor is objecting to your subpoena.” Wait, a doctor? Not the attorney? The news was disappointing as I was ready for a spirited argument (with anyone… about anything), but I could not, with a good conscience, get into a verbal jousting match with a doctor that did not know the law. Particularly since his heart seemed to be in the right place. He was kind enough to sign and fax the SUBP-025 Notice to Consumer form including a handwritten note stating “my patient’s records are confidential and production of these records without the patient’s authorization violates HIPAA.” The doctor is incorrect on two separate and distinct issues, i.e. confidentiality and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Each issue is separated as follows: Compliance with the subpoena does not violate physician/patient confidentiality. Evidence Code §996 expressly provides that there is no privilege with respect to doctor- patient communications when a patient has placed his/her condition at issue. “There is no privilege… as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by… the patient.” Ev. Code §996(a). “The whole purpose of the privilege is to preclude the humiliation of the patient that might follow disclosure of his ailments. When the patient himself discloses those ailments by bringing an action in which they are in issue, there is no longer any reason for the privilege. The patient-litigant exception precludes one who has placed in issue his physical condition from invoking the privilege on the ground that disclosure of his condition would cause him humiliation. He cannot have his cake and eat it too.” City and County of San Francisco v. The Superior Court of the City and County of San Francisco (1951) 37 Cal 2d 227, 232. The Plaintiff in our case claims that the subject incident caused serious injuries to her cervical and lumbar spine. She also claims persistent pain to her right eye and headaches.

3. By pursuing a legal action for damages related to these complaints, she puts her physical health at issue, thereby permitting discovery into these areas. “Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Ev. Code §201. For discovery purposes, information is relevant if it “might reasonably assist a party in evaluating the case and preparing for trial, or facilitating settlement ....” Gonzalez v. Superior CourtCity of San Fernando (1995) 33 Cal.App.4th 1539, 1546. The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally.Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal. 3d 785, 790. In order to evaluate plaintiff’s damage claim, investigation must be conducted into his/her history of prior complaints and treatment, including possible complaints/treatment to the same areas of her body that she claims was injured in the subject incident. Compliance with the subpoena does not violate HIPAA HIPAA permits disclosure of a patient’s protected health information as required by law, including in response to subpoenas in administrative and judicial proceedings. “A covered entity may disclose protected health information in the course of any judicial or administrative proceeding… In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if: (A) The covered entity receives satisfactory assurance… from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request.” 45 C.F.R. §164.512(a), (e)(1)(ii). In accordance with C.C.P. §1985.3, our office served a SUBP-025 Notice to Consumer form on plaintiff’s attorney, providing notice that her medical records are being sought and affording a mechanism to object to the production. C.C.P. §1985.3(b)(2) and (3). This notice satisfies the requirement of 45 C.F.R. §164.512(a), (e)(1)(ii). I drafted a letter to the doctor explaining that his patient was claiming injuries in a legal action and that we were seeking records pertaining to her neck, back, right eye and headaches, as she put those parts of her body at issue. I cited legal authority and went into a comprehensive analysis of how his cooperation with the subpoena does not violate HIPAA. I also made sure to say that time was of the essence and that we needed access to the records by the end of the week. If we did not hear from him we would pursue a court order and monetary sanctions to cover attorney fees if his office refuse to cooperate. I faxed the letter and called the doctor’s office to confirm they received it. The doctor was busy so I left a message for him to call me and sent a copy of the letter via regular mail. If the provider refuses to cooperate and provide access to the records, a motion to enforce the subpoena is the next appropriate step. However, it is advisable to contact plaintiff’s counsel and request that they call the provider and request cooperation. Often times the

4. attorney and/or the client has a relationship with the provider and are willing to cooperate, particularly since they (the consumer) have no objections to the subpoena. However, in the event that the provider still refuses to cooperate, the next step is to file a motion to enforce the subpoena and request monetary sanctions. Monetary sanctions are authorized even againstnonpartydeponents if they “unsuccessfully oppose” a motion to compel.C.C.P. §2025.480(j).Person v. Farmers Ins. Group of Cos.(1997) 52 Cal. App. 4th 813, 818. In Person, the court awarded sanctions against a provider who refused access to records until patient signed a lien.Although your facts might be different from this, Personis authority to support monetary sanctions against a third party healthcare provider for refusing to cooperate with the discovery process. Sanctions are also available if the provider refuses to communicate altogether, thereby leaving the moving partt with no reasonable alternative but to spend valuable time and resources drafting a motion and apearing at a hearing. “The nonparty deponent can always avoid sanctions by agreeing to provide the requested information. Before sanctions can be awarded, the moving party must show it made a “reasonable and good faith attempt” to resolve the issues informally.” Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶8:844, p. 8E-147; CCP §2025.480(b). Unfortunately, many judges disfavor levying sanctions against a party for unsuccessfuly opposing a discovery motion. Thatsame judge will certainly not penalize a third party healchcare provider, particularly when that provider a good faith belif that he/she was protecting a patient’s right to privacy. Nevertheless, you have a right and a duty to mKE an attempt at recoveringttorneys fees and costs that would not have been necessary if the provider simply took the matter seriously and picked up the phone. Therefore, it is important to show that you personally make several attempts to call and tried to educate the doctor on the privacy issue(s) but clearly setting forth these points in written correspondence. Even if your judge does not award sanctions, at least you did everything you could to protect your clients right s and remedies. If, however, the provider callsback and saysthey will cooperate but saythey need $100.00 check first(you would be surprised how may times I got this call), be sure to ask how may pages of records they are talking about and whether this fee includes duplication of x-rays or other diagnostic film. If you have the feeling you are being gouged, refer them to Evidence Code §1563(b)(1), which defines “Reasonable cost” as “ten cents ($0.10) per page for standard reproduction of documents of a size 8 1/2 by 14 inches or less; twenty cents ($0.20) per page for copying of documents from microfilm; actual costs for the reproduction of oversize documents or the reproduction of documents requiring special processing which are made in response to a subpoena; reasonable clerical costs incurred in locating and making the records available to be billed at the maximum rate of twenty-four dollars ($24) per hour per person, computed on the basis of six dollars ($6) per quarter hour or fraction thereof; actual postage charges; and the actual cost, if any, charged to the witness by a third person for the retrieval and return of records held offsite by that third person.” For example, 100 pages of records might reasonably costs $16.00, i.e. $10.00 for the copies and $6.00 for the time. If they still refuse to

5. cooperate, fax a letter to get a clear record on their unseemly request and demand they provide the records and accept a reasonable fee in accordance with Evidence Code §1563. If they refuse, file the motion and when you ask for sanctions, make sure the court knows they tried to gouge you over the copy fees and cite Person v. Farmers Ins. Group of Cos., which will beright on point, for all intents and purposes.