What do I do if my doctor refuses to produce copies of medical records?

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What do you do if a doctor or other
healthcare provider refuses to produce copies of
medical records? Sandor Carrasco Attorney at
Law http//sandorcarrascolaw.com/
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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 patients records,
provided that you cover the costs of copying the
records. Health Safety Code 123110(b) provides
that any patient or patients 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
providers 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 doctors 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 plaintiffs 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
patients records are confidential and production
of these records without the patients
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. Eviden
ce 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.
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