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A Ray of Hope for Purchasers of Medical Records, or Why Pay Retail When You Can Pay Wholesale?

Posted by Andrew J. Barovick | Sep 29, 2015 | 0 Comments

Like most practitioners of a specialty that requires the constant purchase and review of medical records, I had come to assume that I was lucky if the medical records company, or the hospital, charged me $.75 per page for the 500-page record I needed. That meant that someone had actually read the part of my request letter stating that they could not charge me more than $.75 per page, pursuant to New York's Public Health Law, Section 18(2)[e].  Too often, providers would charge much more, and I would have to write back, asking them to lower their price so that it was in line with the PHL.

I had always thought that $.75 per page was a lot to pay for something that probably costs no more than a few cents at the provider's end. And I have never been a fan of the so called “search fees” the providers like to charge, as they are arbitrary and unpredictable.  I have heard grumbling from fellow lawyers on both sides–plaintiff's and defense–for years about the painfully high cost of amassing the roomfuls of medical records necessary to prosecute and defend our cases.  One of my colleagues on the New York City Bar's Medical Malpractice Committee has drafted legislation intended to make the costs fairer and more predictable.  But not much has happened to change things, until now.

Last week, Judge Michael Telesca, of the Western District of New York, issued a decision denying defendants' motion to dismiss in the case of  McCracken v. Verisma Systems, Inc. , 6:14-cv-06248, NYLJ 1202737705857 (WDNY 2015). The defendants are providers of medical records, while the plaintiffs are patients who received medical treatment at the defendant facilities, and claimed that defendants overcharged them for copies of their medical records.  The defendants charged the plaintiffs $.75 per page for their records.  The relevant part of the statute is: “(e) The provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider…However, the reasonable charge for paper copies shall not exceed seventy-five cents per page… ” NY PHL Section 18(2)[e].

Plaintiffs argued that the PHL allows providers to collect a reasonable charge for copies, provided it (1) does not exceed the costs incurred by the provider, and (2) does not exceed $.75 per page of records.  Id. at 11-12. Defendants argued that the PHL sets $.75 as a “presumptively reasonable price,” so that if a provider's copying costs were less than $.75, the provider can go ahead and charge $.75 anyway.  Id.  at 11-12. Judge Telesca noted that defendants' argument “effectively allows healthcare providers to make a profit on copying medical records if they can keep their actual copying costs under $0.75 per page.”  Id.  at 11-12.  He found that defendants' interpretation of the PHL “misreads the statute,” as such providers may not charge more than their actual costs, and even that is capped at $.75 per page.  Id.  at 11-12.  Judge Telesca invited defendants to submit documentary evidence of actual costs incurred.  Id.  at 11-12.

So what are we going to do the next time we request medical records, people? Are we going to accept the going rate of $.75 per page, or are we going to fight, and use Judge Telesca's words as our sharpest weapon?

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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