King County Medical Society and Bar Association Agree on Guidelines for Requesting and Producing Medical Records

By Richard H. Adler, Attorney at Law

The Medical-Legal Committee of the King County Medical Society and Seattle-King County Bar Association recently completed an extensive revision of the Medical-Legal Liaison Pamphlet, the introduction to which states that it is “designed to guide King County physicians and lawyers in matters requiring their professional interaction and mutual cooperation.”

One common dispute between attorneys and physicians relates to the rights and responsibilities of each regarding medical record requests.

The maintenance of complete and accurate medical records is an essential part of the physician’s practice. Original medical records are the business records of the physician and, as such, should be retained by the physician. At some point in time, in any personal injury or Labor & Industries case, the insurance adjustor, the insurance company’s attorney, and/or the patient’s attorney will need to review those records.

Well-maintained records benefit both the patient and physician. From the patient’s point of view, the records ensure continuity of treatment and diagnosis if it becomes necessary for the patient to transfer care to a different doctor. Physicians need access to a complete medical history in order to properly care for a new patient. A well-documented patient’s file greatly reduces repetitive medical testing and reduces risk in providing difficult medical care to the patient.

For the doctor, good records enhance his/her ability to recall the specific circumstances of the patient’s condition and treatment rendered. Equally compelling is the risk that incomplete records will handicap the physician’s ability to defend against malpractice claims, since it is unlikely that the physician will recall every detail of the patient’s care.

Finally, well-maintained records are a necessity for payment of “reasonable and necessary” treatment claims by any insurance company. If the health care provider has failed to adequately support the prescribed treatment in his/her records, the insurance company (or perhaps even a jury or arbitrator) may deny payment of the bills.

CONFIDENTIALITY: Every note, record, report, x-ray, and other document is a permanent, confidential entry into the health care record of the patient. Disclosure of such information over the telephone or releasing the records themselves to those who do not have proper authorization can result in liability to the physician. The medical and bar associations agree that the records must be maintained to ensure this confidentiality is not breached. A physician should have an established policy in his/her office so that each employee is subject to the same requirement of confidentiality that is expected of the doctor.

The medical and bar associations addressed not only the need for confidentiality and disclosure to only authorized persons or entities, but also recognized that response to the request for medical records must be made “promptly.” The medical and bar associations concurred:

In legal proceedings, delays in providing medical records or medical information may delay payment of claims, prejudice opportunities to settle claims or lawsuits, delay trial, or cause additional expense or the loss of important testimony.

The Medical-Legal Committee of the King County Medical Society and the Seattle-King County Bar Association provide the following guidelines for physician-lawyer professional interaction regarding medical record requests:

GUIDELINES FOR ATTORNEYS: An attorney should not request a physician to release a patient’s medical record unless the attorney provides the physician with a proper authorization signed by the patient, a stipulation for release of medical records signed by the patient’s attorney, a properly issued subpoena duces tecum, a court order, or unless such release is necessary to the attorney’s legal representation of the physician or is otherwise permitted or required by law.

If an attorney cannot provide a proper authorization, stipulation, or court order, the attorney should obtain medical records through a formal medical records deposition. An attorney who issues a subpoena duces tecum for a medical records deposition should not invite the physician to mail the records in lieu of the formal deposition.

If an attorney legitimately wishes to obtain from a physician medical information for which a specific release is required (e.g., sexually transmitted disease, H.I.V. testing, mental illness, or drug and alcohol abuse counseling information, etc.) the attorney should provide the physician with a proper specific release, stipulation, subpoena, or court order pursuant to the governing statutes and regulations.
An attorney requesting medical records is responsible for doing all that is legally and ethically possible to ensure that the physician is reimbursed in a timely manner for the reasonable cost of providing copies of medical records.

An attorney should not attempt to involve a physician in a dispute over discoverability of confidential information contain ed in the physician’s medical records.

An attorney receiving a patient’s medical records should keep those medical records confidential and should not release the information contained therein except as reasonably necessary to effectively represent the attorney’s client(s).

GUIDELINES FOR PHYSICIANS: Unless a physician receives either a proper authorization signed by the patient or the patient’s legal representative, a stipulation for release of medical records signed by the patient’s attorney, or a court order, a physician should not send medical records to any attorney other than his own when necessary to the physician’s legal representation.

If a physician receives a subpoena duces tecum for production of medical records at a deposition, the physician or his/her records custodian should produce at the deposition the patient’s medical records as directed in the subpoena. The patient or the patient’s attorney will have notice of the deposition and can seek appropriate relief from the court if grounds exist to prevent the release of records. If the subpoena duces tecum is accompanied by an invitation by the requesting attorney to mail copies of the records in lieu of the formal deposition, the physician should decline such invitation unless the patient or the patient’s attorney consents to such mailing.

Physicians should be cognizant of the statutes and regulations prohibiting the release of certain sensitive medical information, absent a proper specific release, stipulation, subpoena, or court order authorizing or requiring the release of such information (e.g., sexually transmitted disease, H.I.V. testing, mental illness, and drug and alcohol abuse counseling information, etc.).

In worker’s compensation claims special rules may apply. A signed authorization, stipulation, or court order may not be necessary for the release of records. A physician should release medical records or medical information to the Department of Labor & Industries, its representatives, the patient’s employer, and/or the patient’s attorney as provided by the workers’ compensation laws.

If a physician is in doubt about whether release of certain records or information is proper, the physician should seek independent legal counsel.

A physician may charge the party requesting copies of medical records for the reasonable cost of providing the copies.

A physician should not withhold properly requested medical records because the physician’s bill for medical services remains unpaid.

Our experience tells us that guidelines like these, when implemented and followed by the attorney’s and physician’s offices, improve practical working relations and communication between the two professions, facilitate the administration of justice, and recognize the respective needs of physicians and patients, attorneys and clients.

At Adler Giersch, P.S., we are aware of and sensitive to the many time demands placed on the physician’s professional day. When we represent one of your patients, we will exercise professional courtesy, strive for clear communication, ensure your services are reimbursed in a reasonable time period, and remain accessible to assist you or your patient in any way we can.

If you have any questions about the new guidelines or would like a courtesy copy of the compete “Interprofessional Handbook” recently published by the King County Medical Society and the Seattle-King County Bar Association, please do not hesitate to contact Shelley Koty of my office.