Getting records and bills from medical providers is a lot harder than it should be. The Maryland Court of Special Appeals has a new opinion that makes the collection of records even harder. Yes, thankfully, it is an unreported opinion. But it is still a message that health care providers can kick the can down the road on medical records requests with impunity.
The sad part is I agree with the opinion. It was the right call. For sure. But it is not helpful for medical malpractice and personal injury lawyers trying to collect medical records.
What Is the Maryland Record Collection Statute?
Besides begging and pleading, the only sword lawyers have in collecting medical records is § 4-309(a) of the Health-General Article of the Maryland Code. This statute requires health care providers to produce the records with a HIPAA authorization. This statute provides that: If a health care provider knowingly refuses to disclose a medical record within a reasonable time but no more than 21 working days after the date a person in interest requests the disclosure, the health care provider is liable for actual damages.
Miller v. Johns Hopkins
The plaintiff suffered from chronic back pain. For some not entirely clear reason (I don’t think it was in anticipation of litigation), her lawyer sought her medical records from Hopkins. The attorney sent out one request and then another a month later.
Yet another month goes by. The woman’s attorney told the hospital’s records department that Miller might file a lawsuit for the hospital’s failure to provide requested medical records. A week later, on March 9, 2018, Miller’s attorney told the hospital he would sue if the hospital continued to refuse to provide the requested records. A week or so later, the lawyer filed a lawsuit under Md. Code, § 4-309(a) of the Health–General Article. This is the same statute I lauded in the second paragraph of this post.
Lawsuit Gets the Records
So what does Hopkins do when the plaintiff filed a lawsuit? It produced the medical records shortly after the suit was filed. So it all worked out. Hopefully, Hopkins agrees to pick up the costs and everyone goes on their way.
Whoops. The plaintiff does not want to drop the lawsuit. Instead, she insisted that having to wait a few months to get her medical records caused her chronic pain, emotional distress, and mental suffering.
Personally, I think this is a little off the rails, okay? I get so irritated when these medical providers will not produce records. In fact, I get emotional distress and mental suffering from it and I know my clients do. Seriously.
But I think the larger point is that not all emotional distress and mental suffering should be actionable. That is not really where the court goes in the gist of the opinion. But isn’t that the white elephant? Because you theoretically have a lawsuit is not a good reason to maintain a claim.
Laubach v. Franklin Square Hospital
The plaintiff primarily relied upon Lauback v. Franklin Square Hospital to support its claim. This case involved failing to provide fetal heart monitoring strips in a medical malpractice suit. That case interpreted basically the same statute as § 4-309.
Lauback was mostly about whether malice was required under the statue (it’s not and the plaintiff won). But beyond that, Lauback is not helpful to the cause. It fact it does the opposite. It sets out the requirement that there must be an affirmative denial or an intention not to comply with the records request.
Now, taken literally, this is disconcerting. Does the provider have to affirmatively refuse to provide records to be in violation of the statute? Thankfully, the court provides some common sense:
Refusal might be evidenced by less direct language or by circumstantial facts: phone calls repeatedly ignored or some clear personal animosity between [the plaintiff] and a custodian of the records, for example. At some point, a prolonged, unexplained failure to turn over the records would start to look like stonewalling—constructive refusal. But something more than alleging Hopkins “chose” not to take its “chance” to comply is needed.
So I can live with that. Honestly, I can live with the whole opinion. But the problem is that medical providers will not read this paragraph or dig into the nuance. I think the take-home message for them is you can drag your feet or producing records without fear of reprisal.
Full Text of Md. Code Ann., Health General § 4-309
(a) If a health care provider knowingly refuses to disclose a medical record within a reasonable time but no more than 21 working days after the date a person in interest requests the disclosure, the health care provider is liable for actual damages.
(b) A health care provider may not refuse to disclose a medical record on the request of a person in interest because of the failure of the person in interest to pay for health care rendered by the health care provider.
(c) A health care provider or any other person is in violation of this subtitle if the health care provider or any other person:
(1) Requests or obtains a medical record under false pretenses or through deception; or
(2) Discloses a medical record in violation of this subtitle.
(d) Except as otherwise provided in subsection (e) of this section, a health care provider or any other person, including an officer or employee of a governmental unit, who knowingly and willfully violates any provision of this subtitle is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $1,000 for the first offense and not exceeding $5,000 for each subsequent conviction for a violation of any provision of this subtitle.
(e) (1) A health care provider or any other person, including an officer or employee of a governmental unit, who knowingly and willfully requests or obtains a medical record under false pretenses or through deception or knowingly and willfully discloses a medical record in violation of this subtitle is guilty of a misdemeanor and on conviction is subject to the following penalties:
(1) A fine not exceeding $50,000, imprisonment for not more than 1 year, or both;
(ii) If the offense is committed under false pretenses, a fine not exceeding $100,000, imprisonment for not more than 5 years, or both; and
(iii) If the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, a fine not exceeding $250,000, imprisonment for not more than 10 years, or both.
(2) This subsection does not apply to an officer or employee of a governmental unit that is conducting a criminal investigation.
(f) A health care provider or any other person who knowingly violates any provision of this subtitle is liable for actual damages.