Your medical records are some of the most important documents that you will need to gather for your personal injury or auto accident claim. Without sufficient documentation showing the nature and extent of your injuries, or the invoices to back up your claims for special damages, the insurance company will deny your claim. We recommend that you make a HITECH request for your records.
While you are treating with your medical providers, you may visit several doctors and medical offices. This could include everything from the hospital to a specialist (or two or three) to a chiropractor. You may also go to a separate facility for x-rays and/or an MRI.
You must keep a running list of each and every facility and doctor that provides you with medical treatment. When you are finished treating with that particular facility, you must request a copy of your medical records.
The purpose of this article is to help you understand not only that you can request your own medical records, but also how the insurance company may try to have you sign a release so that they can get your records for you (and why this is a very bad idea).
[box type=”info”] As always, if you have any questions, this article is not to be construed as legal advice and we highly recommend that you consult with an experience personal injury or auto accident lawyer about your specific situation.[/box]
Medical Records and HIPAA Privacy Laws
The Health Insurance Portability and Accountability Act of 1996 (commonly referred to as “HIPAA”) serves to protect your personal health information (or “PHI”). HIPAA guarantees certain privacy protections with respect to your PHI, and provides limitations on who can access and retrieve your private medical information. It also guarantees you the right to obtain copies of your own personal medical records.
In guaranteeing you the right to obtain your own medical records, HIPAA provides a framework for the states to follow when regulating how you may go about accessing your own medical records. Some of the regulations include:
- Establishing fees for processing and copying your medical records (North Carolina’s fee schedule can be found here).
- Providing a time limit on how long a provider has to respond to your request (currently it is 30 days);
- Regulating how and where you may review your medical records (in your doctor’s officer, for example); and,
- Other reasonable restrictions on access to your records.
Each state (North Carolina included) has its own set of rules and regulations pertaining to access to medical records.
When people talk about HIPAA, most people understand that this is a law that protect you against the unauthorized release of your medical information. What this means is that not just anybody can call up your doctor and ask for a copy of your medical records. This includes your spouse, other family members, and of course, the defendant’s insurance company. Before anyone may request this information, they must have your signed permission.
And that is the work-around that many insurance companies will use to get your medical records. They will simply ask you to sign a personal release. Unfortunately, the release they provide to you is, more often than not, over broad and will ask for the records of any medical provider you have ever treated with, anywhere.
For this reason, we recommend that you control the access to this information. In other words – first you get the records from the provider and then you send the relevant records to the insurance company.
How to Request a Copy of Your Medical Records
There are two primary ways that you can request your medical records. The first, and most common method, is to simply make a request under HIPAA. The second, and preferred method for reasons that will become clear in a moment, is to make a “HITECH” request. In this article we will focus on making a “HITECH” request.
Requesting your own medical records is typically a very easy and straightforward process. When you hire a lawyer, the lawyer’s office will ask you to sign some documents so that they may request your medical records on your behalf. At our office, we request records using the “HITECH” method to save money (more on that in a bit). The paperwork for a HITECH request is a bit different, and must come directly from you.
If for some reason you are physically or mentally incapacitated, you may need a valid power of attorney so that your “healthcare agent” can request your medical records on your behalf.
When you are requesting the records from a medical provider that treated you for your accident-related injuries, you must make sure to request every document in your file for the period that you treated with the doctor. This will include notes, test results, diagnoses, x-rays, MRI’s, and billing statements. Because of the “Bill v. Paid” law in North Carolina, we recommend that you ask the provider not to include the payment information with your medical bills – only the amount that you were charged.
At the end of this article is a sample letter you can use to make a HITECH request for an electronic copy of your medical records.
The Cost of Obtaining Your Medical Records and Why You Should Ask for a Digital Copy
When making a request under either HIPAA or HITECH, you should understand that the provider will almost always ask that the request be made in writing, and that the patient must be the person making the request.
But wait, won’t our lawyer get our records for us?
Yes, as described above, we certainly will. But a HITECH request can’t come from us, it must come from you with directions that the records be sent to our office.
In making this request, many providers will construe your request as a traditional HIPAA request, and will seek to charge you a per-page cost for copying the records. Under North Carolina Law, they are permitted to charge up to seventy-five cents (75¢) per page for the first 25 pages, fifty cents (50¢) per page for pages 26 through 100, and twenty-five cents (25¢) for each page in excess of 100 pages. The minimum copying fee is $10.00.
However, those rates only apply to the cost of preparing paper copies. If you make a HITECH request, you can avoid these exorbitant fees. Consider, for example, if you had a lengthy hospital stay and your medical file was 2,500 pages long. The cost to copy these pages under North Carolina Law is $656.25. A request under HITECH would cost much less, perhaps as low as $10.00, since the records provider is only permitted to charge you the labor cost involved in preparing and sending the records.
Hopefully it is apparent to you now why making a HITECH records request is so important!
Sample Letter for Making a HITECH Request for Medical Records
Here is a sample letter that you can use when making a HITECH medical records request.
Name of medical provider
Mailing address of medical provider
ATTN: Medical Records Department
RE: HITECH Medical Records Request
Your full name
Your date of birth
Your social security number
Your patient ID number (if applicable)
The date(s) of your treatment
The reason for your treatment
To whom it may concern:
I am a patient of your practice. I am requesting that you provide me with a copy of my medical records which should include, but not be limited to:
- Admitting charts and notes about my admission;
- My medical history;
- Notes from treating physicians and nurses;
- Medical narratives;
- Diagnoses and prognoses;
- Any test results and reasons for tests ordered;
- Notes about consultations and/or referrals; and
- All other information related in any way to my treatment.
Please note that this is a HITECH request. I’m asking that you provide an electronic copy of these records on CD or DVD and that you certify the records.
Please mail the requested records to me at the address listed above. [Or you may include the mailing address of your attorney here].
I will [or my attorney will] pay the HITECH charges for these records. I will pre-authorize any amount below $30.00, but request that you send me a pre-bill for any amount over that threshold.
If you have any questions, or if the information contained in this letter is unclear in any way, please do not hesitate to contact me at [insert your phone number].
[YOUR NAME, PRINTED]
If you have any questions about how best to go about requesting your medical records, or if a medical care provider is requiring a substantial pre-payment to provide the records in violation of the Federal laws, we recommend that you contact an experienced personal injury lawyer right away.
What if the Insurance Adjuster asks you to submit to an Independent Medical Exam?
As you can imagine, there are many instances where an insurance adjuster and a claimant may disagree about the nature and extent of the claimant’s injuries. It is not uncommon for an insurance adjuster to believe that your injuries are just not as severe as you have claimed.
In the event that you are unable to reach an agreement about the extent of your injuries during settlement negotiations, then the insurance adjuster may ask you to submit to an independent medical examination (“IME”) with a doctor of their choosing. The purpose of these exams, at least from the insurance companies perspective, is to give a second opinion on your injuries.
While these appointments are called “independent” medical exams by the insurance companies, in reality they should be called “hired gun who will agree with us that you aren’t hurt exams”. Because that’s what typically happens with these exams. The insurance company has longstanding relationships with doctors that they know will provide a favorable opinion to them. The insurance company is basically paying a doctor to get evidence that they can use to deny or diminish your claim.
We typically advise our clients against submitting to an independent medical exam unless it has been requested by your own insurance company as part of a uninsured/underinsured motorist claim – in which case you may be contractually obligated to submit to the exam before they will agree to a settlement.
In all other situations, however, we recommend that you politely decline the insurance adjusters request for you to submit to an IME.
If you do submit to an IME, you should understand that the insurance company may be permitted to keep the results confidential. If this happens, you will need to hire a personal injury lawyer who can file a lawsuit on your behalf so that they can request the records of the exam through a legal process called discovery.
Final Thoughts on Requesting Medical Records or Submitting Records to the Insurance Adjuster
Always remember that if you were injured in an accident, you are the victim. You do not have to “do” anything, and you don’t even have to turn over any records at all to the insurance company if you don’t want to. I know attorneys that file a lawsuit first, before engaging in settlement negotiations with the defendant’s insurance company. This way they can keep the adjuster on their heels throughout the entire process.
Adjusters have a funny way of settling cases when they see a trial date looming and they aren’t quite sure of what their exposure is just yet!
If you feel like the insurance adjuster is putting undue pressure on you and you aren’t comfortable providing the information they are requesting, then the best thing you can do is stop talking to them and call an experienced personal injury lawyer.
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If you have a question for us, you can submit it confidentially online by clicking here. You can also call The Hart Law Firm at (919) 460-5422. We are happy to speak to you and answered any detailed questions you may have.