Academy of Chiropractic Personal Injury & Primary Spine Care Program

Quickie Consult 307

From the Desk of Dr. Mark Studin
Academy of Chiropractic
Preamble: Many of the issues I bring to you are very small, yet each issue is just that, an issue. If you take care of the small issues, then you will be able to build and more importantly, focus on the bigger issues...a larger practice and more family time.

"I am sorry...I don't have the past medical records in my possession."

Words that can and often do destroy your relationship with lawyers and also set the groundwork for an adverse licensure issue. Access to previous medical records cannot be denied to patients by law in any state I have researched. Admittedly, I have not researched all 50 states, however, I will go out on a limb to say this is a consistent law nationally. In some states, it is law to share records with co-treating doctors, while in other states it is a courtesy. However, upon your patient completing his/her initial paperwork, a record release should be included authorizing you to receive records from other treating entities. This covers you and allows you to get past any level of objection as all patients are entitled to get copies of their records. 
The following are the laws from New York, California and New Jersey regarding the state laws and record retrieval for patients. Most states will fall under these laws as stated above.

Do I have the right to see my medical records?

New York State Law gives patients and other qualified individuals access to medical records.

Q. What happens if a physician still refuses to provide my records, even after I win an appeal?

A. Under New York State law, failure to provide medical records requested by a qualified individual is misconduct. A physician who fails to comply can be subject to disciplinary action by the New York State Health Department.
California Health & SafetyCode Section 123100 et seq. establishes a patient's right to see and receive copies of his or her medical records, under specific conditions and/or requirements as shown below. The law only addresses the patient's request for copies of his or her own medical records and does not cover a patient's request to transfer records between health care providers or to provide the records to an insurance company or an attorney. The request to transfer medical records is considered a matter of "professional courtesy" and is not covered by law. No statutes cover record transfers and there is no set protocol for transferring records between providers. Generally, physicians will transfer records without charging a fee; however, some doctors do charge a fee associated with copying and mailing the paperwork. Physicians will require a patient to sign a records release form to transfer records.
California Section 123110 of the Health & Safety Code specifically provides that any adult patient, or any minor patient who by law can consent to medical treatment (or certain patient representatives), is entitled to inspect patient records upon written request to a physician and upon payment of reasonable clerical costs to make such records available. The physician must then permit the patient to view his or her records during business hours within five working days after receipt of the written request. The patient or patient's representative may be accompanied by one other person of his or her choosing. Prior to inspection or copying of records, physicians may require reasonable verification of identity, so long as this is not used oppressively or discriminatorily to frustrate or delay compliance with this law.

How to Get a Copy of Your Medical Records in New Jersey

The following information will help you to get a copy of your medical records from licensed doctors and hospitals in New Jersey. It will also explain your right to add a comment or correction to your records if you disagree with something. Both federal and state laws protect these rights. If you have any problems getting copies of your medical records, please see What can I do if I need legal help to get my medical records?

Who can get copies of my medical records? Aren’t they confidential?
The law considers your medical records “protected health information” that your health care providers must keep confidential. Your doctor or hospital cannot release any information about your past, present, or future mental or physical conditions without the authority to do so. This includes the information that is kept in electronic records (for example, on a computer).

You, a representative who you authorize, or a person ordered by a court can get copies of your medical records (exceptions are described below). Doctors will ask you to sign an authorization that allows the doctor to give a copy of your records to your representative and to share your medical information with other health care providers who are necessary for your care.

We are all aware of the health care implications of understanding a patient's past. 5 minutes ago I had a conversation with an orthopedic surgeon about a case. I sent my friend to him with a shoulder problem. I have been managing him as a patient for 2 years as an ASSHOLE urologist misdiagnosed him with kidney stones and after getting frustrated, I got him to qualified doctors and he was diagnosed with stage 4 renal cell carcinoma that metastasized to the liver leaving him with a very poor prognosis. He has been responding well to his chemo drugs and he went back to work as a carpenter and hurt his shoulder. He then went to an orthopedist without my knowledge and the orthopedist took an x-ray and shot him up with cortisone, leaving him with more pain. Apparently, the orthopedist either didn't give a crap or is incompetent as he failed to take a complete history. With this patient's history, he needs a bone scan or an MRI with STIR views as the scapula and humerous are prime areas of bone for further metastasizing from his primary cancer site in his kidney.Although the orthopedist took an x-ray of his shoulder, it is commonly known that a metastasis does not show up on x-ray until at least 50% of the bone has been invaded. 
NOTE: This is no different with spine and a conversation for a later topic. 
This morning, I sent him to a highly competent orthopedist, in conjunction with his oncologist, and he will be getting a bone scan and an MRI of his shoulder with STIR views to ensure that it is an orthopedic and not oncological problem BASED UPON HIS history. Past history is critical in health care.
Past medical history is also critical in the medical-legal arena. Yesterday, a doctor called and asked about apportioning bodily injury in 3 accidents: 2002, 2006 and 2011. He had MRIs of the cervical spine from 2006 and 2011. While helping him apportion the injuries, I asked, "Where are the MRIs or records from 2002?" His answer was, "The patient didn't have them and I relied on what he said." My question was, "Did the patient have MRIs?" His answer was, "I don't know." 
Can you imagine how that will play out on the witness stand when the doctor testifies that he has records from 2011 and 2006 and apportions the cervical injuries each at 50% for the respective accidents based upon the records and patient's history. Then...the defense lawyer does his/her homework and presents in trial an MRI report from the 2002 accident that the patient failed to report to the doctor (because he wanted to get more money from the case...or whatever reason because the reasons do not matter). The MRI report revealed that all of the damages reported in 2006 were present in the prior case. This will do a few things. First, the entire argument and conclusion of the doctor on the witness stand as expert will have just become untrue and his reputation will be destroyed in a hearing where there is a public record called a "court transcript." 
You just cost the lawyer the case, meaning that lawyer will never work with you again...perhaps forever...and worse, will trash you to all of his/her colleagues because you cost him/her the case. In addition, not only should you have done better, your license standard is that you pull in all old pertinent medical records and if the patient got hurt for any reason and rendered a complaint against you, there is a good chance that you will have to defend your license and it could have been avoided if you simply followed the rules we were all taught in school.
It is critical for the welfare of the patient, the standard of your license and your relationships with the lawyers that you physically have in your charts all prior pertinent medical records. More non-negotiable stuff!

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