Rhode Island Bar Journal
55 RI Bar J., No. 4, Pg. 5 (January-February 2007).
Requests for Medical Records: A Practical Guideline
Rhode Island Bar Journal55 RI Bar J., No. 4, Pg. 5 January-February 2007 Requests for Medical Records: A Practical GuidelineLinn F. Freedman, ESQ. and Jodi N. Bourque, ESQ.Linn F. Freedman and Jodi N. Bourque work for the law firm of Nixon Peabody LLP.You have a case - maybe it involves a personal injury or a worker's compensation injury and proving damages requires the use of medical records. How do you obtain them? What are the requirements of the Rhode Island Confidentiality of Health Care Information Act? What categories of health care information have additional state or federal protections and require patient authorization or a Court Order? We represent hospitals and medical providers that confront issues relating to the release of confidential healthcare information on a daily basis. Since we see the same issues arise day after day, we were compelled to provide this practical guideline to assist attorneys and providers with common issues relating to requests for medical records. Below is an outline of the laws governing patient healthcare information in Rhode Island and some practical advice on how to obtain medical records in order to avoid the most common pitfalls encountered in the process.
The Rhode Island Confidentiality of Health Care Act
The Rhode Island Confidentiality of Health Care Act, R.I. Gen. Laws § 5-37.3-1 et. seq., (the "Act") is similar to the better known federal Health Insurance Portability and Accessibility Act, more commonly known as HIPAA. (fn1) "Confidential health care information" is defined in the Act as "all information relating to a patient's health care history, diagnosis, condition, treatment, or evaluation obtained from a health care provider who has treated the patient." R.I. Gen. Laws § 5-37.3-3(1)(ii).
In general, pursuant to the Act, a provider may not release health care information without the patient's consent. The best way to obtain medical records in litigation is to have the patient execute an authorization form during discovery allowing the provider to release the information. Usually, an authorization form is only valid for 90 days. If you obtain an authorization form, try to ensure the form includes the release of sensitive information, which is discussed below.
If you are able to obtain an authorization form signed by the patient, you will avoid most of the pitfalls discussed below. Accordingly, our first recommendation is to request that the patient, usually the Plaintiff, execute a medical authorization form permitting the disclosure of the medical information, including sensitive information.
Notice of Deposition of Keeper of Records
If the patient refuses to sign a medical authorization form, the next procedure is to notice the deposition of the keeper of records of the hospital or medical provider and issue a subpoena for the production of the records. Among its provisions, the Act allows for disclosure of confidential health care information in a court proceeding if the disclosure is pursuant to a subpoena. R.I. Gen. Laws § 5-37.3-6.1(a). However, the person seeking records through issuance of a subpoena must certify to the keeper of records that:
(1) a copy of the subpoena has been served by the party on the individual whose records are being sought (the patient) on or before the date the subpoena was served, together with a notice of the individual's right to challenge the subpoena; or, if the individual cannot be located within this jurisdiction, that an affidavit of that fact is provided;
(2) Twenty (20) days have passed from the date of service on the individual and within that time period the individual has not initiated a challenge; or
(3) Disclosure is ordered...