September 11, 2018
Author: Layna S. Cook
Organization: Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
Medical Records in the Courtroom
I. Obtaining Medical Records for Court Proceedings
A. Authorizations
The individual whose medical records are sought may sign an authorization allowing release of the records for the court proceeding. 45 C.F.R. 164.501. The authorization must meet the requirements set forth in the HIPAA Privacy Rule for authorizations. It must be in writing and contain specific information including:
• A description of the protected health information to be used or disclosed.
• The name of the person authorized to make the use or disclosure.
• The name of person(s) to whom the requested use or disclosure may be made.
• The purpose for the use or disclosure.
• An expiration date or expiration event.
• Signature and date of signature of the patient whose information is to be used or disclosed. (If the authorization is signed by a personal representative of the individual, a description of the representative’s authority to act for the patient should be provided.)
Under Louisiana law, specifically LSA-C.C.P. Art. 1465.1, the authorization must also state that it does not authorize verbal communications.
A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party.
B. The party upon whom the request is served, within fifteen days after service of the request, shall provide to the requesting party releases signed by the plaintiff or other authorized person unless the request is objected to, in which event the reasons for the objection shall be stated. The party requesting the release of medical records may move for an order under Article 1469 with respect to any objection or other failure to respond to the request.
C. The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, if he is represented by an attorney, a copy of the request directed to the health care provider, which copy shall be provided contemporaneously with the request directed to the health care provider.
D. The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, within seven days of receipt, a copy of all documents obtained by the requesting party pursuant to the release.
B. Subpoenas
A covered provider or plan may disclose information to a party issuing a subpoena only if the notification requirements of the HIPAA Privacy Rule are met. A covered entity that is not a party to litigation may disclose protected health information in response to a subpoena, discovery request, or other lawful process, that is not accompanied by a court order, provided that the covered entity:
• Receives a written statement and accompanying documentation from the party seeking the information that reasonable efforts have been made either (1) to ensure that the individual(s) who are the subject of the information have been notified of the request, or (2) to secure a qualified protective order for the information; or
• Itself makes reasonable efforts either (1) to provide notice to the individual(s) that meets the same requirements as set forth below for sufficient notice by the party making the request, or (2) to seek a qualified protective order as defined below. 45 CFR 164.512(e).
The covered entity must make reasonable efforts to limit the protected health information used or disclosed to the minimum necessary to respond to the request. 45 CFR 164.502(b) and 164.514(d). The requirement to provide sufficient notice to the individual(s) is met when a party provides a written statement and accompanying documentation that demonstrates:
• A good faith attempt was made to notify the individual (or if the individual’s location is unknown, to mail a notice to the individual’s last known address);
• The notice included sufficient detail to permit the individual to raise an objection with the court or administrative tribunal; and
• The time for the individual to raise objections under the rules of the court or tribunal has lapsed and no objections were filed or all objections filed by the individual have been resolved by the court and the disclosures being sought are consistent with the resolution.
A qualified protective order is an order of a court or administrative tribunal or a stipulation by the parties that prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and requires the return to the covered entity or destruction of the protected health information (including any copies) at the end of the litigation or proceeding. The party requesting the information must provide a written statement and accompanying documentation that demonstrates:
• The parties to the dispute have agreed to a qualified protective order and have presented it to the court or administrative tribunal; or
• The party seeking the protected health information has requested a qualified protective order from the court or administrative tribunal.
When requesting records from a healthcare provider in Louisiana, an attorney should comply with both the HIPAA Privacy Rule and Louisiana law since it is possible to comply with both provisions of law.
LSA-C.C.P. Art. 3715.1. Medical or hospital records of a patient; subpoena duces tecum and court order to a health care provider; reimbursement for records produced
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B. The exclusive method by which medical, hospital, or other records relating to a person's medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner:
(1) A health care provider shall disclose records of a patient who is a party
to litigation pursuant to a subpoena issued in that litigation, whether for
purposes of deposition or for trial and whether issued in a civil, criminal,
workers' compensation, or other proceeding, but only if: the health care
provider has received an affidavit of the party or the party's attorney at
whose request the subpoena has been issued that attests to the fact that
such subpoena is for the records of a party to the litigation and that notice
of the subpoena has been mailed by registered or certified mail to the
patient whose records are sought, or, if represented, to his counsel of
record, at least seven days prior to the issuance of the subpoena; and the
subpoena is served on the health care provider at least seven days prior to
the date on which the records are to be disclosed, and the health care
provider has not received a copy of a petition or motion indicating that the
patient has taken legal action to restrain the release of the records. If the
requesting party is the patient or, if represented, the attorney for the
patient, the affidavit shall state that the patient authorizes the release of the
records pursuant to the subpoena. No such subpoena shall be issued by
any clerk unless the required affidavit is included with the request.
(2) Any attorney requesting medical records of a patient, who is not a
party to the litigation in which the records are being sought may obtain the
records by written authorization of the patient whose records are being
sought or if no such authorization is given, by court order, as provided in
Paragraph (5) hereof.
(3) Any attorney requesting medical records of a patient who is deceased
may obtain the records by subpoena, as provided in Paragraph (1) hereof,
by written authorization of the person authorized under Louisiana Civil
Code Article 2315.1 or the executor or administrator of the deceased's
estate, or by court order, as provided in Paragraph (5) hereof.
(4) Any subpoena for medical records issued by the office of workers'
compensation administration in the Louisiana Workforce Commission, or
by a hearing officer or agent employed by such office, shall for all
purposes be considered a subpoena within the meaning of this Section.
(5) A court shall issue an order for the production and disclosure of a
patient's records, regardless of whether the patient is a party to the
litigation, only: after a contradictory hearing with the patient, or, if
represented, with his counsel of record, or, if deceased, with those persons
identified in Paragraph (3) hereof, and after a finding by the court that the
release of the requested information is proper; or with consent of the
patient.
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C. No health care provider, employee, or agent thereof shall be held civilly
or criminally liable for disclosure of the records of a patient pursuant to
the procedure set forth in this Section, R.S. 40:1299.96, or Code of
Evidence Article 510, provided that the health care provider has not
received a copy of the petition or motion indicating that legal action has
been taken to restrain the release of the records.
D. Unless the subpoena or court order otherwise specifies, it shall be
sufficient compliance therewith if the health care provider delivers by
registered or certified mail, at least forty-eight hours prior to the date upon
which production is due, or delivers by hand on the date upon which
production is due a true and correct copy of all records described in such
subpoena. However, no subpoena or court order shall require the
production of original, nonreproducible materials and records unless
accompanied by a court order or stipulation of the parties and the health
care provider which specifies the person who will be responsible for the
care of the items to be produced, the date and manner of the return to the
provider of the items to be produced, and that the items to be produced are
not to be destroyed or subject to destructive testing. Any subpoena duces
tecum not timely served shall be quashed by the trial court without the
necessity of an appearance by the hospital, health care facility, or medical
physician.
E. The records shall be accompanied by the certificate of the health care
provider or other qualified witness, stating in substance each of the
following:
(1) That the copy is a true copy of all records described in the subpoena.
(2) That the records were prepared by the health care provider in the
ordinary course of the business of the health care provider at or near the
time of the act, condition, or event.
F. If the health care provider has none of the records described, or only
part thereof, the health care provider shall so state in the certificate, and
deliver the certificate and such records as are available.
G. The health care provider shall be reimbursed by the person causing the
issuance of the subpoena, summons, or court order in accordance with the
provisions of R.S. 40:1299.96.
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K. Any attorney who causes the issuance of a subpoena or court order for
medical, hospital, or other records relating to a person's medical treatment,
history, or condition and who intentionally fails to provide notice to the
patient or to the patient's counsel of record in accordance with the
requirements of this Section shall be subject to sanction by the court.
LSA-C.C.P. Art. 1469.1- Order compelling discovery of medical records
No order, subpoena, or subpoena duces tecum for the purpose of obtaining
or compelling the production or inspection of medical, hospital, or other
records relating to a person's medical treatment, history, or condition,
including a subpoena or order issued under Article 1463 and including a
subpoena compelling the attendance of the custodian of records or other
employee of the health care provider, either by name, title, or position, in
connection with such production, shall be granted or issued except as
provided in R.S. 13:3715.1.
II. Admissibility
As a general rule, for medical records to be admissible, they must be kept in the regular course of business. While some states require a custodian to testify that medical records are kept in the regular course of business, Louisiana has a law that allows for their admission with a certification.
LSA-R.S. 13:3714 - Charts or records of hospitals, other health care providers; admissibility of certified or attested copy; BAC scientific analysis reports
A. Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination. Communications from the patient to the healthcare provider may not be admissible under the physician/patient privilege. If the patient or the physician on behalf of the patient asserts the privilege, the communications are not admissible. LSA-C.E. Art. 510 - Health care provider-patient privilege
A. Definitions. As used in this Article:
(1) “Patient” is a person who consults or is examined or interviewed by another for the purpose of receiving advice, diagnosis, or treatment in regard to that person's health.
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(8)(a) “Confidential communication” is the transmittal or acquisition of information not intended to be disclosed to persons other than:
(i) A health care provider and a representative of a health care provider.
(ii) Those reasonably necessary for the transmission of the communication.
(iii) Persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist.
(iv) A patient's health care insurer, including any entity that provides indemnification to a patient.
(v) When special circumstances warrant, those who are present at the behest of the patient, physician, or psychotherapist and are reasonably necessary to facilitate the communication.
(b) “Confidential communication” includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.
(9) “Health condition” is a physical, mental, or emotional condition, including a condition induced by alcohol, drugs, or other substance.
B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.
(2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
(a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker's compensation proceeding.
(b) When the communication relates to the health condition of a deceased patient in a wrongful death, survivorship, or worker's compensation proceeding brought or asserted as a consequence of the death or injury of the deceased patient.
(c) When the communication is relevant to an issue of the health condition of the patient in any proceeding in which the patient is a party and relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which a party deriving his right from the patient relies on the patient's health condition as an element of his claim or defense.
(d) When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.
(e) When the communication made to the health care provider was intended to assist the patient or another person to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud.
(f) When the communication is made in the course of an examination ordered by the court with respect to the health condition of a patient, the fact that the examination was so ordered was made known to the patient prior to the communication, and the communication concerns the particular purpose for which the examination was made, unless the court in its order directing the examination has stated otherwise.
(g)(i) When the communication is made by a patient who is the subject of an interdiction or commitment proceeding to his current health care provider when such patient has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the interdiction or commitment proceeding, provided that the patient has been advised of such appointment and the consequences of not submitting to the examination.
(ii) Notwithstanding the provisions of Subitem (i) of this Item, in any commitment proceeding, the court-appointed physician may review the medical records of the patient or respondent and testify as to communications therein, but only those which are essential to determine whether the patient is dangerous to himself, dangerous to others, or unable to survive safely in freedom or protect himself from serious harm.
However, such communications shall not be disclosed unless the patient was informed prior to the communication that such communications are not privileged in any subsequent commitment proceedings. The court-appointed examination shall be governed by Item B(2)(f).
(h) When the communication is relevant in proceedings held by peer review committees and other disciplinary bodies to determine whether a particular health care provider has deviated from applicable professional standards.
(i) When the communication is one regarding the blood alcohol level or other test for the presence of drugs of a patient and an action for damages for injury, death, or loss has been brought against the patient.
(j) When disclosure of the communication is necessary for the defense of the health care provider in a malpractice action brought by the patient.
(k) When the communication is relevant to proceedings concerning issues of child abuse, elder abuse, or the abuse of disabled or incompetent persons.
(l) When the communication is relevant after the death of a patient, concerning the capacity of the patient to enter into the contract which is the subject matter of the litigation.
(m) When the communication is relevant in an action contesting any testament executed or claimed to have been executed by the patient now deceased.
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E. Waiver. The exceptions to the privilege set forth in Paragraph B(2) shall constitute a waiver of the privilege only as to testimony at trial or to discovery of the privileged communication by one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq., or pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.
F. Medical malpractice. (1) There shall be no health care provider-patient privilege in medical malpractice claims as defined in R.S. 40:1299.41 et seq. as to information directly and specifically related to the factual issues pertaining to the liability of a health care provider who is a named party in a pending lawsuit or medical review panel proceeding.
(2) In medical malpractice claims information about a patient's current treatment or physical condition may only be disclosed pursuant to testimony at trial, pursuant to one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq., pursuant to R.S. 40:1299.96
or R.S. 13:3715.1.
G. Sanctions. Any attorney who violates a provision of this Article shall be subject to sanctions by the court.
III. Using Medical Records in Court Proceedings
Once medical records have been obtained and it has been determined that they are admissible in a proceeding, thought should be given to using the medical records effectively. The purpose of introducing the medical record is the critical aspect of determining how to present the medical record and medical testimony.
• Do you need records only or live testimony? - The answer depends on what you need to prove. In some instances, a certified copy of the records may be sufficient. Typically, in cases involving payment for services, a certified copy of the record which includes billing records is sufficient. If the details of the medical treatment, diagnosis and/or prognosis are key elements of the case, then the healthcare provider will be an important witness.
• Know your medical records. - When a patient’s condition or treatment is at issue, it is important to know the details of the medical treatment, diagnosis and/or prognosis. Resources such as the treating physician, expert and even the internet can help the attorney understand the medical records. A complete understanding of the information is necessary for effective presentation to a judge or jury.
• Know and be prepared for information that is not favorable. - It is a rare occurrence that all the details in a medical records are favorable to one’s position. Make sure you have an understanding of those portions of the medical record that do not support your position and be prepared to address them.
• Organize the record. - Make sure that the medical record has been organized and that key provisions are highlighted and tabbed prior to trial.
• Consider whether summaries and timelines would be helpful. - Medical records are very technical. In cases where the medical record is voluminous, summaries and time lines may greatly assist a jury in understanding the medical issues.
• Models and diagrams. As with summaries and timelines, models and diagrams are very powerful demonstrative exhibits that can help a jury gain a better understanding of the medical condition at issue.