Can a Lawyer Get My Medical Records Without My Consent

Handling Attorney Requests for Medical Records

Oct 23, 2022 08:00AM ● By Med Magazine

By Dean McConnell

I of the challenges of being a medical provider is when your world intersects with the legal world. It can place you in situations where confusion and concern may arise when deciding the proper course of action. A common example is when wellness intendance providers receive medical records request from an attorney.

These requests can occur in a variety of forms:

• When yous are treating a patient involved in a motor vehicle accident, or a patient who is under investigation in a criminal situation such as a DUI or an assault and battery.

• Custody battles betwixt parents also effect in requests for records from attorneys involved.

• Requests may involve an attorney investigating whether to bring a medical malpractice claim.

Different legal rules may employ depending on who makes the request, whether information technology is an breezy request or a subpoena, or if the request is tied to a criminal case.

All of this tin be very confusing, and before taking any action, providers need to empathize the details of their specific state of affairs. In addition, providers should consider legal assistance to ensure they are abiding past the advisable requirements that can vary past state.

Breezy Requests Earlier a Lawsuit

Who unremarkably requests the records: The patient or the patient's attorney.

What to know: If the patient, or the patient'south personal representativei asks that you send all or role of a medical record to an attorney, then the patient'south "right of admission" nether HIPAA applies and the records must exist provided equally before long equally reasonably possible, just no subsequently than thirty days.

If unusual circumstances exist beyond the command of the provider, such that the records cannot be produced inside 30 days, one additional xxx-twenty-four hour period extension may exist obtained by notifying the patient of the unusual circumstances and that an additional 30 days will exist required.

If the informal request for medical information does non come up through the patient, then the provider must have a HIPAA-compliant say-so, signed by the patient, before care is discussed or copies of records are provided.

Requests After a Lawsuit is Filed

Who usually requests the records: One or more of the attorneys involved.

Informal requests: A HIPAA-compliant authorization signed by the patient or the patient'south personal representative must be obtained before any information may be disclosed, oral or in writing.

Subpoenas: The provider will need to determine if information technology involves a civil lawsuit or a criminal instance:

• Most subpoenas involve civil lawsuits including motor vehicle accidents, bounds liability claims, and divorce and child custody issues.

• Subpoenas in criminal cases usually have a state or federal government entity or agency listed as a political party and are signed by a deputy district chaser or assistant attorney general.

Out-of-Country Subpoenas

Occasionally, providers receive subpoenas from out-of-state attorneys or record retrieval services.

Mostly, a subpoena, whether civil or criminal, is not valid in any state except the country in which the action is pending (unless the attorney goes through a procedure to get a state court to issue a subpoena for the out-of-state proceeding). Providing records to an invalid amendment could upshot in ceremonious claims for breach of confidentiality and administrative action for violation of HIPAA.

Many providers are unfamiliar with the rules pertaining to responding to subpoenas. We encourage you to discuss these principles and educate your staff about properly responding to an chaser'south request for information. If you have any questions, it is recommended that you speak with an attorney or contact your medical liability insurance provider if they are able to provide assistance in these situations.

Dean McConnell JD, is Senior Legal Counsel with COPIC, a leading provider of medical professional liability insurance.

1 Nether HIPAA, a person authorized to act on behalf of the patient in making health care related decisions is the patient's "personal representative." Typically, this is a person holding a medical power of chaser. An attorney does not normally have the dominance to brand healthcare decisions for a patient-client and would not normally exist a "personal representative."

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Source: https://www.midwestmedicaledition.com/2019/10/23/288581/handling-attorney-requests-for-medical-records