The HITECH Act finally levels the playing field for lawyers trying to get medical records. - Mark P. Loftus

As a trial lawyer, I’ve been representing injured people for decades. One of my pet peeves is how cavalier Illinois medical providers are when it comes to responding to requests for records. Pursuant to 735 ILCS 5/8-2001, medical providers have 30 days to respond to requests for records. But in my experience providers, rarely, if ever, respond within 30 days and sometimes require multiple additional requests. And if you haven’t filed suit, your only mechanism of enforcement is filing an entirely separate lawsuit against the providers asking for fees. Most trial lawyers, to quote Colonel Nathan Jessup, have neither the “time nor inclination” to do that. [I attached a clip of that speech. Nicholson kills it as Colonel Nathan R. Jessup. I defy you to name one actor who would have delivered that monologue better than Jack Nicholson. And “A Few Good Men” is a great courtroom movie to boot.]

Back to HITECH. If, by some odd twist of fate, you did receive the records on a timely basis, you would also get a bill. And that bill, for just a couple doctor visits, would always run $40-$50. And if lengthy hospitalization records were necessary for review, you would be looking at hundreds, possibly thousands of dollars in medical record expense before your lawsuit was even on file. And there wasn’t much that you could do about it.

But now there is. The Health Information Technology for Economic and Clinical Health Act[“HITECH Act”] was part of an economic stimulus package introduced by the Obama administration in 2009. One of the primary objectives of the Act was to increase the use of Electronic Health Records[“EHR”] by providers. Under HITECH, a patient has the right to obtain their “protected health information.” Under the Act, “protected health information” means all information, including medical charting and billing maintained in electronic media. Thankfully, most[but not all] providers have made the switch to maintaining records in electronic format. And, of critical importance to trial lawyers, the Act providers that patients can designate a third party – i.e. the patient’s lawyer – to receive the records.

And the fees under HITECH are decidedly lawyer-friendly. Under HIPAA, for records maintained in electronic format, page charges are not considered reasonable as hundreds of pages of records can be transmitted onto a disc or attached to an email with a couple keystrokes. The only charges allowed are the charges for the labor to transfer the records to a CD or thumb drive. Again, a couple keystrokes. Under HITECH a flat fee of $6.50 can be charged by the provider. Yep, $6.50. I had been chasing records in a medical malpractice case from a large Chicago hospital for months. Decided to give this whole HITECH thing a whirl and had my client drop off a HITECH request at the hospital. Ten days later I had a disc with nearly 5,000 pages of records. The fee? $6.50. At that moment, I became a believer.

The requesting letter is very simple and there are all kinds of templates on the internet. I looked at a couple and put my own letter together and have tweaked it a couple times over the last month. If you want a copy shoot me an email. One important caveat: that letter MUST come from the client.

While I have only been using HITECH for a few months, thus far the results are very, very promising. If you do personal injury, medical malpractice, workers’ compensation or disability work – where records are a necessary part of every case – you need to jump on the HITECH bandwagon.