A recent local appellate decision in our 4th District, 1st Division, Court of Appeals, finds that medical record request fees which exceed the limits set in Evidence Code section 1158 are not in violation thereof because attorneys create their own agency relationship with copy-services where they proceed to pay invoices received after submitting record requests to medical providers.
The case was on appeal from a judgment entered by Honorable Judge Kenneth J. Medel in favor of Defendant BACTES (now operating as Sharecare). Judge Medel found that although BACTES had initially acted as an agent of the hospital by compiling the medical records, they then acted as an agent of Plaintiff when they provided the medical records. The case was a class action, with Plaintiff representing 9691 attorneys who had similarly hired BACTES as their copy-service.
THE RECORD REQUEST PROCESS
As personal injury attorneys we frequently make record and billing requests to hospitals. These records are necessary to facilitate settlement agreements with carriers, establish damages in anticipation of trial, and to help our client’s best evaluate medical treatment options available to them. After so many years of practice, the records and billing requests become somewhat automated. We know who and where to send them to, and the standard amount they demand in order to process the requests. Unfortunately, more medical providers have been transitioning to third party copy-services such as Sharecare.
Sharecare presents itself to requesting parties as if they are just another chain in the hospitals record request compliance. After submitting your request and HIPAA form to the medical provider, you may receive an invoice from Sharecare with a cover page stating:
“[Sharecare] is the record management service for the provider named on the enclosed invoice. We have received your request for records on the above-named patient. Upon receipt of payment or guarantee of payment, we will release records accordingly.”
A plain reading could only interpret the message to mean that Sharecare is stepping in to the shoes of the medical provider. However, in much smaller font, on the invoice provided, they state:
“We have received your request for records for PATIENT. Pursuant to Evidence Code section 1158, you have several choices for obtaining patient records, including retaining an outside photocopy service, visiting [the facility] and inspecting the records during business hours, or retaining Sharecare as your copy service.”
It is this language that the Court found an agency relationship to be created upon payment of the fees.
WHY IT IS IMPORTANT
The fees charged by Sharecare are excessive. Evidence Code section 1158 is commonly read by attorneys, and accepted by many medical providers, to cap reasonable fees for most record requests at $15. The lowest invoice we have seen from Sharecare is $45. A standard record request with around 250 pages can bring a charge of $150.
These high fees are compounded by medical providers treatment of medical records and billings. For some clients, a record and billing request for a single hospital will require three separate requests, and three separate invoices. One to retrieve medical records, a second to retrieve hospital billing records, and a third to receive physician billing records.
In California, where many defendants carry only the minimum policy coverage requirements, these fees can add up to eat a significant amount of your client’s potential recovery. A hospital that utilizes Sharecare can eat 1% of your client’s recovery, at a minimum. If it is a larger request, that’s 3%. And if your client treated at multiple facilities their net recovery shrinks even further.
HOW TO PROCEED IN LIGHT OF THE DECISION
If money is of little concern, continue paying the Sharecare invoices and you will get the records you need to proceed with the case. For many cases, the fees will a minimal percentage of your client’s recovery.
If the impact is too great to ignore, follow these steps:
- Include on your records request that if the records are kept in electronic format that you would like to receive them in whatever electronic method the medical provider can produce them in.
- After receipt of an invoice from a 3rd party copy service, Sharecare or others, reply by fax or email that you are rejecting their services and would like the records in electronic format as you requested.
- Call the facilities record department and ask for the records in electronic format.
- If the records are not kept in electronic format, request that they make the records available for your inspection within 5 days.
Although you will add more steps to your workload, you will save your client money in the long run.