How can a personal injury attorney obtain medical records and costs?
After a car crash or other tortious act, the lawyer must obtain the victim’s medical records and calculate their bills to prevail in their lawsuit or insurance claim.
Unfortunately the process to obtain medical records can be expensive and slow and the ability to learn medical costs has been nonexistent. But these should not be road blocks that delay litigation and hobble insurance claims in our high-speed digital world.
So it is good news to both plaintiff lawyers and their clients that the federal government has adopted two important remedies to fix these problems.
1. New medical records rule
- Deadlines for healthcare providers to deliver electronic records to patients are shortened to 15 days, half of the 30 days now allowed;
- Records must be delivered to injured people who request their records online free of charge; and
- Patients can request that records also be sent to their attorney.
How to get medical records efficiently
In 2009, as part of the Recovery Act to counteract the Great Recession, Congress enacted the HITECH Act. It substantially expanded and required electronic health information use in the medical industry. One commentator called it “HIPAA on steroids.” That aging privacy law and medical records delivery system enacted in 1996 was rarely enforced and if so, penalties were minor.
One of its best features of HITECH was the patient’s ability to to obtain records for only $6.50 per record-set plus postage and the labor cost of the provider, not the costs of outsourced providers including HealthPort and Ciox. Costs may increase if the records are recorded on paper.
This fee superseded any state law that allowed higher amounts. This was critical since enormous mark-ups are the norm. Records regarding a hospitalization with surgery can cost over $1,000, and more with required affidavits.
HITECH allowed an individual to obtain their electronic medical records within 30 days by using a simple request. He or she could also direct that they be sent to their attorney or other party.
Practice tips:
1. Only the individual, not an attorney, can make the HITECH request. The letter should simply designate who the recipient of the records is and be signed by the individual.
2. He or she must pay for the records.
3. The individual can designate their attorney to receive the records.
4. If the individual has deceased or is incompetent, a personal representative may sign the request of their behalf.
5. However, the attorney is allowed to fax the letter from their office on the client’s behalf and can write a follow-up letter notifying the provider that it has violated HIPAA regulations and that he or she intends to file a complaint with the Department of Health and Human Services.
6. A HIPAA third-party authorization is not required.
7. All records, including x-rays, CT scans, MRIs, film and CDs, bills, and audit rails, must be produced. The only exception is for psychiatric notes taken during a counseling session and documents prepared for litigation or quality control.
8. If the responding provider/records custodian does not reply, file a complaint filed with the Office of Civil Rights at HHS. See www.hhs.gov/ocr/complaints/
9. Sometimes, this process is not as easy as it should be. More information about this process and how to meet objections from the records providers is here.
The decision that caused the new rule
The new rule undoes the damage to plaintiffs caused by a lawsuit filed by a national medical records provider which claimed that HITECH caused it to lose a substantial amount of money. A federal judge on the D.C. Circuit ruled in January 2020 that third parties — especially law firms — could no longer obtain those records inexpensively and made other decisions that reduced the simplicity and cost-savings of HITECH.
Huge penalties can be assessed
The U.S. Department of Health and Human Services has actively enforced patients’ rights to obtain their records cheaply and quickly. Each violation can be penalized with a fine up to $1 million.
2. New medical costs rule
Effective January 1, 2021 the Price Transparency Rule requires all U.S. hospitals to publicize 300 of their standard charges on their websites. This must be in an easily readable and searchable format to enable patients to make intelligent decisions about the cost of upcoming operations, diagnostic tests, and treatment.
For example, one of the largest hospital chains in Texas has disclosed for the first time that a magnetic resonance image to the cervical spine will cost $958.19 (without health insurance, Medicare, or Medicaid). This is useful information.
What lies ahead?
The process of obtaining medical records and calculating the reasonable cost of medical bills will continue to be one of the thorniest aspects of a personal injury lawsuit.
The battle will continue. For example, a new bill has been pre-filed in the Texas Legislature that convenes tomorrow to further reduce the amount of medical bills that can be allowed as “paid or incurred.”
Stay tuned.