Robert G. Sullivan, Medical Malpractice Attorney, Advises Patients of the Right to Access Their Medical Records Under New York Law
Many patients do not know that they have an absolute right to access their records and charts from the doctors and hospitals caring for them. In this revealing article, New York medical malpractice attorney Robert G. Sullivan explains the legal basis for patients’ entitlement to important information about their medical conditions.
As a New York attorney who handles cases involving medical malpractice and personal injury, I am still surprised at how many of my clients mistakenly believe that they cannot obtain a copy of their own records, those of a child or even those of a deceased loved one. Often, informal requests made by these clients result in refusals on the part of doctors and hospitals.
New York Law, as set forth in Public Health Law Sections 17 and 18, mandates, with few exceptions, that a healthcare provider disclose to patients or his next-of-kin copies of medical records. The term “healthcare provider” is broadly defined, and includes, among other things, hospitals, doctors, therapists, physical therapy centers, and dentists. In the case of mammography studies, patients are entitled to open access to their original x-ray films.
As mentioned above, there are a few, limited situations in which the law allows a health care provider to refuse access. For example, if the provider has a “reasonable belief” that the release of the records will cause an identifiable and significant detrimental harm to the patient, the provider may refuse to release them. If a physician believes that her personal observations about the patient or his condition will cause harm, if released to the requester, he may refuse to do so.
In order for the doctor, hospital or other health care provider to release the records, a written authorization is required. The authorization can limit access to certain types of records or be unrestricted, allowing release of all records. In the case of records involving treatment of alcohol/drug abuse, HIV infection and psychiatric/psychological issues, the person signing the release must specifically allow release of those types of records, most commonly by initialing the appropriate box on the authorization. The authorization only provides for release of written/printed records. In order for the doctor or other health care provider to speak with someone other than the patient, it is necessary that the form authorize a conversation and identify, by name, the persons with whom the health provider may speak.
Lawyers in New York use an authorization form drafted by the New York State Department of Health and the Office of Court Administration. However, many hospitals have their own forms, which are often accessible from websites.
In years past, in the event that a loved one died, a family could face unreasonable denials by doctors and hospitals of requests to release the deceased’s records. Often, providers would be heard to demand that an estate be established for the deceased and that a representative of the estate be appointed. In some instances, the creation of an estate and appointment of a representative is a costly and time-consuming endeavor. In order to prevent this, the New York Legislature amended existing laws and authorized next-of-kin to obtain a decedent’s medical records. Upon provision of a written authorization and a copy of the death certificate, immediate family members may obtain their loved one’s records.
Patients should bear in mind that New York law allows the health care provider to charge a reasonable cost for the records. At the present time, a provider may charge up to 75 cents a page for duplication. There is a provision in the Public Health Law, however, that forbids a provider from denying copies of records simply because a patient cannot afford to pay this charge.
From time to time, even attorneys encounter a refusal of a hospital or doctor to provide records requested for their clients. In such cases, attorneys may petition the court for an order requiring the doctor or hospital to disclose the records immediately. If the order is disobeyed, an infrequent occurrence, the court may be petitioned, again, to hold the health care provider in contempt and fine it.
Medical records may contain important information needed for a patient to get a “second opinion” or undergo a course of treatment at another facility. New doctors may require a review of previous medical records when they take on the care of a patient. Although the records themselves are considered to be the doctor’s property, the law requires that the patient have access to copies of them. It is important for every patient to know his or her rights and insist that they are respected.
