Your Rights to Your or a Loved One’s Medical Records

One of the first places to start in any case involving medical negligence or medical malpractice is getting the patient’s records.  Unfortunately, this can be a very frustrating experience.  Many healthcare providers block or delay turning over their records.  They often site HIPPA laws or give other excuses.  The truth, more often than not, is that they are delaying so that they can go though them first.  That is a recipe for fraud and abuse.  Many times, they are sent directly to their lawyers first so that they can look at them.  This is not only wrong, it violates the law.  The Louisiana revised statute which applies is published below.  If you run into this issue, contact us to help.
§ 40:1299.96. Health care information; records

A. (1) Each health care provider shall furnish each patient, upon request of the patient, a copy of any information related in any way to the patient which the health care provider has transmitted to any company, or any public or private agency, or any person.

(2) (a) Medical records of a patient maintained in a health care provider’s office are the property and business records of the health care provider.

(b) (i) Except as provided in R.S. 44:17, a patient or his legal representative, or in the case of a deceased patient, the executor of his will, the administrator of his estate, the surviving spouse, the parents, or the children of the deceased patient, or after a claim has been made, the insurance company or its counsel, or, after suit has been instituted, defense counsel or a defendant seeking any treatment record, including but not limited to any medical, hospital, laboratory, invoice or billing statement, or other record, including test results, relating to or generated as a result of or in connection to the patient’s medical treatment, history, or condition, either personally or through an attorney, shall have a right to obtain a copy of the entirety of the records in the form by which they are generated, except microfilm, upon furnishing a signed authorization. If the original treatment records are generated, maintained, or stored in paper form, copies shall be provided upon payment of a reasonable copying charge, not to exceed one dollar per page for the first twenty-five pages, fifty cents per page for twenty-six to three hundred fifty pages, and twenty-five cents per page thereafter, a handling charge not to exceed twenty-five dollars for hospitals, nursing homes, and other health care providers, and actual postage. The charges set forth in this Section shall be applied to all persons and legal entities duly authorized by the patient to obtain a copy of their medical records. If treatment records are generated, maintained, or stored in digital format, copies may be requested to be provided in digital format and charged at the rate provided by this Item; however, the charges for providing digital copies shall not exceed one hundred dollars, including all postage and handling charges actually incurred. If requested, the health care provider shall provide the requestor, at no extra charge, a certification page setting forth the extent of the completeness of records on file. In the event a hospital record is not complete, the copy of the records furnished shall indicate, through a stamp, coversheet, or otherwise, the extent of completeness of the records. Each request for records submitted by the patient or other person authorized to request records pursuant to the provisions of this Subparagraph shall be subject to only one handling charge, and the health care provider shall not divide the separate requests for different types of records, including but not limited to billing or invoice statements. The health care provider or person or legal entity providing records on behalf of the health care provider shall not charge any other fee which is not specifically authorized by the provisions of this Subparagraph, except for notary fees and fees for expedited requests as contracted by the parties.

(ii) The individuals authorized to obtain medical records pursuant to Item (i) of this Subparagraph shall also have the right to obtain copies of patient X-rays, and other imaging media, upon payment of reasonable reproduction costs and a handling charge of twenty dollars for hospitals and ten dollars for other health care providers. If the patient X-rays and other imaging media are generated, maintained, or stored in digital format, copies may be requested to be provided in digital format and charged at the rate provided by this Item; however, the charges for providing digital imaging media copies shall not exceed two hundred dollars, including all postage and handling charges actually incurred. If requested, the health care provider shall provide the requestor, at no extra charge, a certification page setting forth the completeness of the X-rays and other imaging media on file. In the event hospital patient X-rays and other imaging media are not complete, the copies furnished shall indicate, through a stamp, coversheet, or otherwise, the extent of the completeness of the records. Each request for copies of patient X-rays and other imaging media submitted by the patient or other person authorized to request records pursuant to Item (i) of this Subparagraph shall not be considered a separate request and are subject to only one handling charge, and the health care provider shall not divide the requests for different types of X-rays and other imaging media. The health care provider shall not charge any other fee which is not specifically authorized by the provisions of this Subparagraph, except for notary fees and fees for expedited requests as contracted by the parties.

(c) If a copy of the record is not provided within a reasonable period of time, not to exceed fifteen days following the receipt of the request and written authorization, and production of the record is obtained through a court order or subpoena duces tecum, the health care provider shall be liable for reasonable attorney fees and expenses incurred in obtaining the court order or subpoena duces tecum. Such sanctions shall not be imposed unless the person requesting the copy of the record has by certified mail notified the health care provider of his failure to comply with the original request, by referring to the sanctions available, and the health care provider fails to furnish the requested copies within five days from receipt of such notice. Except for their own gross negligence, such health care providers shall not otherwise be held liable in damages by reason of their compliance with such request or their inability to fulfill the request.

(d) A health care provider may deny access to a record if the health care provider reasonably concludes that knowledge of the information contained in the record would be injurious to the health or welfare of the patient or could reasonably be expected to endanger the life or safety of any other person.

(e) Nothing in this Section shall be construed to limit or prohibit access to the information contained in the records of a patient maintained by a health care provider in any legally permissible manner other than those delineated pursuant to R.S. 22:976 and in this Section, subject to the provisions of R.S. 13:3734.

(3) (a) Medical and dental records shall be retained by a physician or dentist in the original, microfilmed, or similarly reproduced form for a minimum period of six years from the date a patient is last treated by a physician or dentist.

(b) Graphic matter, images, X-ray films, and like matter that were necessary to produce a diagnostic or therapeutic report shall be retained, preserved and properly stored by a physician or dentist in the original, microfilmed or similarly reproduced form for a minimum period of three years from the date a patient is last treated by the physician or dentist. Such graphic matter, images, X-ray film, and like matter shall be retained for a longer period when requested in writing by the patient.

(4) (a) Any person conducting or operating a clinical laboratory or medical facility shall report test results to the patient who is the subject of the test upon his request. Approval from a health care provider shall not be required prior to reporting test results in accordance with the provisions of this Paragraph.

(b) When a clinical laboratory or medical facility provides test results to a patient pursuant to this Paragraph, it shall also provide notice to the provider that the patient requested the test results and the results of the test to the health care provider ordering the test.

(c) Notwithstanding any other provision of law to the contrary, the clinical laboratory or medical facility shall deliver the requested test results to the patient after verifying the identification of the patient. Test results may be delivered by mail if the patient has executed a HIPPA form and a written authorization to that effect. In addition, the test results may be delivered to any other person authorized by the patient in writing to receive the results.

(d) The patient shall not have a right or cause of action against the clinical laboratory or medical facility for the release of test results in accordance with the provisions of this Paragraph.

(e) The clinical lab or medical facility shall only report the test results to the patient who is the subject of the test upon his request in a manner which is consistent and in accordance with all applicable federal laws.

(f) The clinical lab or medical facility shall only report the test results to the patient who is the subject of the test upon his request when the cost of the tests have been fully paid by the patient or applicable payor source.

B. As used in this Section:

(1) “Health care provider” means a “health care provider” as defined in R.S. 40:1299.41 or a “state health care provider” as defined in R.S. 40:1299.39 or a clinical laboratory or medical facility in accordance with Paragraph (A)(4) of this Section.

(2) “Patient” means a natural person who receives or should have received health care from a licensed health care provider, under a contract, express or implied.

C. (1) The provisions of this Section shall not be applicable to a health care provider who has evaluated or examined a patient at the request of any agency of the state or federal government in charge of the administration of any of the assistance or entitlement programs under the Social Security Act. The records of such evaluation or examination shall be retained for ninety days after mailing or upon proof of receipt of the records, whichever period is shorter. Nothing herein shall be construed as limiting or prohibiting the access to health care information and records of a patient that are retained by the Social Security Administration in any legally permissible manner under state law that is not contrary to federal law or regulation.

(2) A person or entity otherwise subject to the provisions of this Section who provides medical records to a nonprofit organization assisting with social security or medicaid applications may waive or charge an amount less than the maximum charges set forth in Item (A)(2)(b)(i) of this Section.

NOTES: