The Appropriate Way to Obtain Medical Records
By: José T. Brown
Most recently, patients and plaintiff’s attorneys have been requesting medical records through a different route, either the Michigan Consumer Protection Act or the Freedom of Information Act. The copying and requesting of medical records is one of the most frequent problems physicians within the Genesee County Medical Society encounter. I receive a weekly phone call from a physician in the Genesee County Medical Society regarding medical records. These telephone calls are welcomed, but, it is hoped this article will aid the members of the Genesee County Medical Society in answering the basic questions about production of medical records. Please be aware that Cline, Cline & Griffin and this author welcome phone calls from any physician regarding medical records or other legal questions.
Michigan Consumer Protection Act and Freedom of Information Act Do Not Require Production of Records
Recently, patients and plaintiff’s attorneys have been requesting medical records be produced pursuant to the Michigan Consumer Protection Act and also the Michigan Freedom of Information Act. The courts have ruled that these are not appropriate statutes or vehicles by which to order medical records. The Michigan Consumer Protection Act defines thirty one “unfair, unconscionable or deceptive methods, acts or practices in the conduct of trade or business.” MCL 445.903(1); MSA 19.418(3)(1). “Trade or commerce” is defined as “the conduct of a business providing goods, property, or services primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.” Individuals who have suffered a loss as a result of violation of the Michigan Consumer Protection Act may bring an action to recover actual damages of $250.00, whichever is greater. Plaintiffs or plaintiff=s attorneys have cited a number of different unfair trade practices enumerated in the statute as violations for failure to produce medical records. The Courts have found that the copying of patient records is not trade or commerce within the act because a physician is not in the business of providing such a service. Rather, providing patients with copies of records is incidental to the practice of medicine.
One of the other recent attempts to gain medical records is through the use of the Freedom of Information Act. The only way in which a patient could receive medical records pursuant to this Act is if the actual patient was authorizing and requesting the release of records. A parent, sibling, or spouse who requests the release of medical records pursuant to the Statute are not entitled to the records. The basis for this decision is that the courts have ruled that only the real party in interest (the patient) has a standing to make such a request. An individual who is requesting medical records of loved ones may only assert his or her own legal rights and interests and cannot rest his or her requests for the medical records on the legal rights or interests of third parties.
The Copying of Medical Records is Unnecessary Until and Authorization is Provided
Frequently, physicians receive Subpoenas for the production of their medical records. Although a Subpoena appears as an official court document, and it can be quite intimidating to a physician and office support staff, the requirement of a signed authorization by the patient is not waived. The physician should also insist upon an original signed authorization rather than a faxed copy or an e-mail copy to protect the confidentiality of the patient. Given my experience and this office’s experience with copies of authorizations it is best that your office chart contain a signed original, the address and telephone number of the patient. If there is any question as to the genuineness or authenticity of the authorization, the physician or office support staff should contact the patient.
There have been a number of times where Subpoenas have been sent to a physician’s office and medical records have been copied and supplied without the mandatory authorization. This occurs in automobile accident cases, domestic relation disputes, billing disputes, criminal investigations, social services investigations, etc. For example, an unhappy spouse may subpoena their medical record through his or her attorney to determine whether there is alcohol problems, drug problems, sexually transmitted disease, etc. Parents may subpoena through their attorney, the records of their children for child custody disputes. Attorneys have subpoenaed the records of patients for purposes of pursing an automobile accident case. All of the above scenarios should include an original signed authorization by the patient. In this County civil actions have arisen against physicians for providing medical records pursuant to a subpoena, but, in the absence of a valid signed authorization.
X-Rays Are Not the Property of the Patient
Another frequent concern amongst physicians and physicians who work in hospitals, is the providing of x-rays. Many times patients will come a physician’s office or to the hospital requesting their x-rays. Many times these requests are legitimate for purposes of seeking treatment and other times the requests are somewhat nefarious (they wish to show them to the plaintiff’s attorney’s expert). Unless the doctor and the patient agree x-ray negatives are the property of the physician who prepared them. The courts have held that it is appropriate for a doctor to refuse to deliver x-ray negatives (the originals) even though the patient was willing that the negatives should be inspected by other physicians or removed from the physician’s office. The courts have ruled that in the absence of an agreement to the contrary, the x-ray originals are the property of the physician or surgeon who has made them incident to treating a patient. It is a matter of common knowledge that x-ray negatives are practically meaningless to the ordinary layman. But, the retention by the physician or surgeon constitutes an important part of his clinical record in the particular case, and in the aggregate these negatives may embody and preserve much value incident to physician or surgeon’s experience. They are as much a part of the history of the case as any other case record made by a physician or surgeon. In a sense, they differ little, if at all, from microscopic slides of tissue made in the course of diagnosis or treating a patient, but it would hardly be claimed that such slides were the property of the patient. Also, in the event of a malpractice suit against a physician or surgeon, the x-ray negatives which he or she has caused to be taken and preserved incident to treating the patient might often constitute the unimpeachable evidence which would fully justify the treatment of which the patient was complaining. Thus, in the absence of an agreement to the contrary, there is every good reason for holding the x-rays that are the property of the physician or surgeon, rather than of the patient or party who employed such physician or surgeon, notwithstanding the cost of taking the x-rays was charged to the patient or to the one who engaged the physician or surgeon as a part of the professional services rendered.
The suggested course with regard to the request of x-rays is to provide a copy of the original at the patient’s costs, even if it is claimed that the records are for subsequent treatment.
The Scope of the Medical Records Request Should be Reviewed
Frequently, an authorization for medical records will come to a physician=s office and the office support staff will copy off the entire record carte blanche, including correspondence from other physicians who may have been referring physicians, correspondence from medical billing, correspondence from Blue Cross/Blue Shield, copies of hospital records which would include other physicians such as consultants. It is suggested that a conservative approach be taken to the providing of medical records. If there is a question as to whether the record does not involve treatment (such as correspondence) then it usually does not fall within the scope of the request. It goes without saying that this conservative approach can be supported by the law in this State. First, there is a physician/patient privilege, MSA 27(A).2157 that indicates that no person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character. This also applies to physician support staff, including physician assistants. A physician assistant is considered the agent of the supervising physician pursuant to statute MSA 14.15(17078). The physician assistants shall conform to the minimal standards of acceptable and prevailing practice of the supervising physician. Further, there is support to take the conservative route by the fact that it is a misdemeanor to disclose the identity or treatment of a patient without the appropriate authorization, MCLA 750.410; MSA 28.642. The Michigan Court Rules require that a physician, hospital, or other custodian of medical information shall comply with a properly authorized request for medical information within twenty-eight days after the receipt of the request, MCR 2.314. This time frame is only valid in the event a lawsuit has been filed. Further, a properly authorized request must be from the patient, not from the parent, spouse or relatives of the decedent, it should be made with accompanying copies of “Letters of Authority” (these are official Probate Court documents authorizing that person to act on behalf of the decedent’s estate).
Conclusion
It is hoped this article provides an overview as to the appropriate concerns and checklists to detail before providing medical records. The physician or office support staff should check, at a minimum, the following:
- Is there an original signed authorization by the patient.
- Does the person signing the authorization have the authority to seek the patient=s records.
- If the records are subpoenaed, is there an accompanying original signed authorization, or, if it is a request for a decedent’s records, are there accompanying Letters of Authority.
- What is the scope of the request of the medical records.
- Only those records need to be supplied which involve this physician’s care and treatment.
- Original records are NEVER supplied to the patient, including x-rays, pathology slides, but copies should be made at the expense of the patient.
- If there is any question about the authenticity or genuineness of the request, take the conservative approach.
- If you have questions about any request for medical records, please call Cline, Cline & Griffin at (810) 232-3141.
