If you are contemplating any type of lawsuit for personal injuries or even a claim against a healthcare provider, you need to obtain a full and complete copy of your medical records. Securing copies of your personal healthcare records is an important first step in the claims process, because when the patient has possession of his or her records, they can corroborate their injuries and/or the suspect healthcare provider will not have the opportunity to make self-serving edits to the medical records. Further, by being in possession of your medical records, it will be easier for you to consult with medical specialists who can support your primary treating physician’s care and diagnosis/prognosis or evaluate any negligence in your prior medical care.
Sometimes, patients or clients complain that the medical office refuses to provide a copy of their records. Typical excuses include false claims that the records can only be requested by another healthcare provider, or that the records cannot be released without payment of an outstanding bill, or even that patients are not entitled to the doctor’s records. All such excuses are inaccurate and contrary to state and federal law.
IT MUST BE NOTED: It is against the law for any healthcare provider to refuse to provide a copy of the full and complete medical records to the subject patient.
Your record is the physical property of medical provider. However, the patient controls the release of the information contained in the record. In general, you must give permission for anyone, other than a member of your healthcare office, to have access to your medical record. By law, your records may be disclosed without your permission under certain circumstances such as in response to a subpoena or court order, to certain government and regulatory bodies, to someone who holds your power of attorney, to someone you have designated as your healthcare surrogate, to another healthcare provider for continued care, and to your healthcare insurer to obtain reimbursement for your care.
By law, only an adult (i.e., age 18 or older) patient or a legally designated representative has the authority to release the information contained in a medical record about them, regardless of who is paying the bills. Legally designated representatives include court-appointed guardians or others with power of attorney for the patient. For children under age 18, only a parent or court-appointed guardian may authorize release of medical information. The next of kin or personal representative of the estate may request those records.
According to Florida law, a physician is responsible for maintaining records for at least five (5) years (64B8-10.002). Because malpractice lawsuits could be brought beyond two (2) years from the date of an incident (additional years for some minors), physicians are encouraged to maintain records for a full seven years. HOWEVER, many purge their records after the five (5) year period. Under Florida law, many healthcare providers must keep medical records for a minimum period. For example, doctors in Florida must keep medical records for at least five (5) years after their last contact with the patient. Public hospitals in Florida must keep their medical records at least seven (7) years after the patient has been discharged. In practice, many healthcare providers keep their records longer. You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.
A federal law called the HIPAA Privacy Rule gives you the right to get and amend (correct) your medical record. HIPAA stands for the “Health Insurance Portability and Accountability Act.” Florida laws also give you rights in your medical record.
Florida Statute §456.057, among others, in Florida, patients have the right to: • See and get a copy of their medical records. Upon your request, your healthcare provider must give them a copy of their medical records in a timely manner, usually within 30 days. They must also let them see their medical record if they ask. The healthcare provider can charge the patient for copies. They can also charge for postage. • Amend their medical record by having information added to it. They have the right to have information added to their record to make it more complete or accurate. This right is called the right to amend your record. • File a complaint. They have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if they believe your healthcare provider has violated their right to see, get a copy of, or amend their medical records. They can also file a complaint with the state agency that regulates healthcare providers. • Sue in state court to obtain their medical record. They have the right to sue in Florida local court to get a copy of their medical records.
Under Florida law, the healthcare provider owns the patient’s physical medical records. For example, if the provider maintains paper medical records, they own and have the right to keep the original records. The patient only has the right to see and get a copy of it. In Florida, a person can designate another person (a surrogate) to make health care decisions on their behalf. If an individual is their parents’ healthcare surrogate, they generally have the right to get and amend the corresponding medical records that are relevant to making healthcare decisions on their behalf. The agent authorized by that power of attorney has this right while the subject healthcare surrogate is in effect.
You have the right to see your medical record. And again, you also have the right to get a copy of your medical record. These rights are often called the right of access to your medical records. Usually, your healthcare provider must respond to your request for your record in a timely manner, without delay for legal review. This usually means in less than 30 days. Generally, your provider must give you a copy in the format that you request if they are able to do so. You may have to pay a fee to get a copy of your record.
In a potential claim against a medical provider, Florida Statute §766.204 requires that a healthcare provider must provide a potential claimant with a full and complete copy of the relevant medical records within 10 business days (20 days for hospitals). Although §766.204 does not require a request for records to be in writing, it is recommended creating a paper trail since it could be advantageous to do so should there be a formal claim filed in the future.
It is recommended sending a written request for records by one of the following methods: via e-mail, with a “delivery receipt” and “read receipt” attached; via fax, with a fax delivery receipt; or, via the USPS, sent certified mail with a return receipt requested.
It should be noted that the healthcare provider is permitted to charge reasonable copying fees as mandated by Florida Administrative Code 64B8-10.003. Specifically, a healthcare provider may charge no more than $1.00 per page for the first 25 pages, and no more than $0.25 per page for anything more than 25 pages (hospitals can charge $1.00 per page regardless of the number of pages). Ideally, it is recommended digital copies of the records be obtained whenever possible. The records should be requested in a PDF format, and it is good idea to provide an inexpensive USB drive (i.e., thumb drive) to the healthcare provider at the time of the request. Regardless of the format, the healthcare provider is entitled to reasonable copying charges as outlined above.
If you should have any questions about obtaining a copy of your medical records, please consult with the attorneys at the law firm of CASERTA & SPIRITI.