Medical records can be voluminous in complex medical negligence cases and copy costs are increasingly expensive. In medical negligence cases and most other personal injury cases, defense counsel will send unsolicited stipulations to obtain a plaintiff’s medical records soon after the names of plaintiff’s medical providers are disclosed in written discovery. In almost all cases, a competent lawyer for the plaintiff should almost always not allow the client to sign these documents. Most often the defense stipulations do not protect the plaintiff’s privacy; protect from identity theft; or stop the plaintiff from the extra cost of an additional copy of the records.
We started using a method which allows the defense to obtain necessary medical records, while reducing costs and protecting clients and their patient privacy. Here are the general steps of our practice.
Offer to Give a Copy of the Records to the Defense
Plaintiff’s lawyers usually have already obtained the plaintiff’s past medical records which are relevant to the issues of the case. However, records from ongoing treatment may not be up to date at the time a plaintiff lawyer orders them. Unfortunately, some defense insurers insist upon obtaining medical records directly from the plaintiff’s medical providers. Insurers also may request unrelated medical records or mental health care records (which are not discover-able . A fair offer to provide records should be made. A plaintiff’s lawyer is under an ethical obligation to provide complete and accurate copies of the records he or she agrees to provide. A protective order should be requested if records are identified which raise concerns for the plaintiff’s lawyer. If defense counsel agrees to accept the plaintiff’s copy of the records, a written agreement should be made to ensure the records are returned or destroyed at the end of the case. A request for payment of half of the records retrieval and copy cost is also fair.
Offer an Alternative Stipulation and Order
If defense counsel will not accept the records we offer to provide (or have already provided in a demand package), we propose use of a Stipulation and Order to Obtain Medical Records which we drafted. Basically, the stipulation provides:
Method of Production:
- The medical providers shall mail a copy of the medical records and bills of the plaintiff to a mutually agreed upon medical records retrieval service.
- Within three (3) days of receipt of the medical records from each provider, the medical retrieval service shall send a Bates stamped copy in electronic “.PDF” format to (Plaintiff’s Counsel).
- Within five (5) days of receipt of the medical records from each provider, plaintiff’s counsel shall send by U.S. Mail or hand-delivery, a complete copy of all medical records to counsel for the parties that are subject to this order; or shall provide defense counsel with a privilege log detailing the Bates Number and description of any document to which a privilege or objection to production is made.
- Plaintiff’s counsel shall keep true and correct copies of any documents for fifteen (15) days in order to allow a motion to compel to be filed by defense counsel for the parties that are subject to the Stipulation and Order.
Expiration of Stipulation:
The stipulation and order shall become void and of no legal effect thirty (30) days after the date appearing at the bottom of this stipulation and order.
No records, healthcare information, or social security numbers obtained from the medical records shall be sold, transferred, maintained, kept, or copied by any person or entity subject to this stipulation and order. To the extent that the terms of this stipulation and order allow defense counsel to share, transfer, or copy records or healthcare information to third parties who may not be signators to this stipulation (such as defense experts or defense counsel’s client) as a necessary part of litigation, defense counsel assumes responsibility for ensuring that any and all third parties with whom such information is shared, transferred or copied, comply with all of the terms and conditions of this stipulation and order.
Plaintiff’s counsel shall not be charged or incur expense for the records. Attorneys for the other parties subject to this stipulation and order shall pay the customary charges for the copies provided to them.
The copies of records produced shall not be released to any other person or entity except counsel for parties, or expert witnesses retained in this case, absent prior written permission from plaintiff’s attorneys. All records shall be returned to Plaintiff’s Counsel at the conclusion of this case. Alternatively, defense counsel may shred the records and provide plaintiff’s counsel with a declaration stating the records were shredded within thirty (30) days of the conclusion of the case.
Limited Use of Stipulation:
No records may be released by mailing, except as provided in this stipulation. Defense attorneys shall not request custodians of records to mail records in order to avoid attending a deposition to obtain records without the prior written consent of plaintiff’s attorneys.
The form Stipulation and Order to Obtain Medical Records is a modified version of previous forms found on WSAJ’s EAGLE brief bank. (An electronic copy of our form can also be obtained by e-mailing the authors at email@example.com or firstname.lastname@example.org).
If No Agreement to Stipulation, Send a Letter to Medical Providers
Recently, we were surprised when an insurance company’s lawyer did not agree to obtain the medical records by stipulation and sent out “fake” subpoenas disguised as a “Notice of Intent” to obtain medical records directly from a plaintiff’s healthcare providers. Understandably, most medical providers want to minimize the time spent dealing with the legal system and are easily confused by direct communication from an insurance lawyer which looks like a subpoena. In response to such a situation, a letter to a plaintiff’s health care provider may resolve the health care provider’s confusion. Essentially, a letter to a medical health care provider that received a Notice of Intent would state:
You received a letter dated _______, notifying you of Notice of Intent to Serve Subpoena for medical records of Joe Bob Plaintiff. Please DO NOT MAIL COPIES OF JOE BOB’s MEDICAL RECORDS. Pursuant to RCW 70.02.060, the lawyer requesting Joe Bob’s records is legally required to serve you with an original subpoena. After they have served you with an original subpoena, we will plan on meeting with you prior to production of the medical records.
Health care providers are often very concerned about HIPAA (Health Insurance Portability and Accountability Act of 1996). Under HIPAA’s privacy rule, a health care provider may only release protected health information (PHI) in response to a court order for only the PHI expressly authorized by the court order; or in response to a subpoena without a court order, only if the health care provider (covered entity) “receives satisfactory written assurances that the party seeking disclosure has made reasonable efforts to ensure that the individual has been notified of the request or that reasonable efforts have been made by the party seeking the information to secure a qualified protective order.” See 45 C.F.R. §164.512(e).
Make Defense Counsel Follow the Law
Surprisingly, our recent encounter with the insurance lawyer showed that they used a non-lawyer agency to mail Notices of Intent combined with subpoenas and expected the plaintiff’s health care providers to simply mail the plaintiff’s medical records back to them. These practices should not be tolerated, and practitioners have been admonished for violating: (a) RPC 4.4’s prohibition against using methods of obtaining evidence that violate the legal rights of others; (b) RPC 8.4(c)’s prohibition against conduct involving misrepresentation; and (c) RPC 8.4(d)’s prohibition against conduct prejudicial to the administration of justice.#
By using these tactics, the non-lawyer agency gives the health care providers the impression that they must mail them the records or else appear for the deposition. Informal Ethics Opinion #2022 (2003) prohibits this practice. Moreover, the failure to serve a subpoena in conformance with CR 45 renders the service a nullity, giving the subpoena no legal effect. State v. Adamski, 111 Wn.2d 574 (1988) (if service requirements have not been met, the subpoena cannot be said to have been issued); see also, Harrison v. Prather, 404 F.2d 267, 273 (5th Cir.1968). Misleading non-parties by suggesting that they must comply with a “fake” subpoena, when the subpoena has no force and effect of law, is an illegal and ethical violation.
If defense counsel refuses a proposed stipulation, they must follow the law. Before subpoenaing health care records, a party must provide a 14-day notice of intent to obtain such records. RCW 70.02.060, “Discovery request or compulsory process”, requires:
(1) Before service of a discovery request or compulsory process on a health care provider for health care information, an attorney shall provide advance notice to the health care provider and the patient or the patient’s attorney involved through service of process or first-class mail, indicating the health care provider from whom the information is sought, what health care information is sought, and the date by which a protective order must be obtained to prevent the health care provider from complying. Such date shall give the patient and the health care provider adequate time to seek a protective order, but in no event be less than fourteen days since the date of service or delivery to the patient and the health care provider of the foregoing. Thereafter the request for discovery or compulsory process shall be served on the health care provider. (Emphasis added).
(2) Without the written consent of the patient, the health care provider may not disclose the health care information sought under subsection (1) of this section if the requestor has not complied with the requirements of subsection (1) of this section. In the absence of a protective order issued by a court of competent jurisdiction forbidding compliance, the health care provider shall disclose the information in accordance with this chapter. In the case of compliance, the request for discovery or compulsory process shall be made a part of the patient record.
(3) Production of health care information under this section, in and of itself, does not constitute a waiver of any privilege, objection, or defense existing under other law or rule of evidence or procedure.
RCW 70.02.060 (emphasis added).
The statute is quite clear that it is improper to issue both the Notice of Intent to Obtain Health Care Records and the Subpoena contemporaneously. The reason for this is obvious: many health care providers, unrepresented by counsel and unknown to the patient, will send the records in response to the subpoena, thus destroying any opportunity to obtain a protective order, to object or to review records prior to production at a records deposition. See, e.g., State v. White, 126 Wn. App. 131, 134 (2005) (“Unless an adverse party has notice of the subpoena, it is difficult to imagine how he can move to quash or modify it.”). The healthcare provider is thereby tricked into violating the law and mailing confidential and statutorily protected medical records, depriving the plaintiff patient of the protections provided by law.
Ask the Judge for Help
While dealing with discovery motions in a civil case is probably one of the least favorite things judges do, this is an important issue. Medical records often contain very private information, sometimes inaccurate information, and potentially damaging or dangerous information to your client. Examples are easy to imagine:
- A wife who had an abortion without her husband’s knowledge;
- Extramarital affairs;
- A spouse / partner who contracted a sexually transmitted disease;
- A patient who experienced sexual identity issues;
- A patient diagnosed with HIV;
- A patient who experienced past abuse;
- Alcoholism / drug addiction;
Each of those issues and many more could certainly be listed in a medical record. Additionally, the patient’s date of birth, social security number, address and other information that could make a person a target for identity theft, computer crime, or other crime is readily available in medical records.
The Stipulation and Order to Obtain Medical Records that we propose is reasonable. It provides a method which will allow plaintiff’s lawyers to review the records and move for a protective order if any of the potentially harmful information is contained within the records. This can be done with zero harm to defense counsel. Everybody saves money. And, by the way, it complies with HIPAA! 45 C.F.R. §164.512(e)(1).1 A thoughtful judge would be hard-pressed to say no to such a reasonable solution. Sample Motions for a Protective Order are also available in the WSAJ EAGLE brief bank.
1. See Washington State Bar News, Vol. 52, No. 10, 10/98, containing a disciplinary notice that admonished a lawyer for not complying with RCW 70.02.060.
2. (e) Standard: Disclosures for judicial and administrative proceedings.
(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order;
Doug Weinmaster, WSAJ EAGLE member, practices in Seattle with the Perey Law Group, representing plaintiffs in medical malpractice and serious injury cases. He serves on the WSAJ Board of Governors and also chairs the WSAJ Medical Negligence Section.
James J. Holland, WSAJ EAGLE member, is with the Perey Law Group in Seattle. He is a former litigation associate at Perkins Coie in Seattle and a former King County Deputy Prosecuting Attorney. Mr. Holland’s practice currently focuses on personal injury, including wrongful death, medical malpractice, products liability and aviation law.