What happens if a medical facility releases your medical records to the general public? What happens if an insurance company releases medical records to the general public?
Well, according to Section 146.84 Wisconsin Statutes that facility or person may be liable for tens of thousands of dollars in addition to actual damages and ACTUAL attorneys fees. Believe me, that can be a lot of money.
I found an article from a few years ago written by a couple Michael, Best and Friedrich attorneys concerning this issue. I hope it will continue to be available. Finerty and Barlament state:
This statute may apply to entities other than health care entities. The statute’s penalty provisions for example, Wis. Stat. § 146.84, apply to “[a]ny person, including the state or any political subdivision of the state” who violates Wis. Stat. § 146.82 or 146.83. Wis. Stat. § 146.84(1)(b), (bm). Similarly, penalties (including a fine of up to $25,000 and up to 9 months in prison) can be applied to “[w]hoever” obtains certain confidential information under false pretenses or with knowledge that the disclosure is unlawful and not reasonably necessary to protect another from harm. Wis. Stat. § 146.84(2)(a).
I was thinking about this after a client asked me what protection she/he has when medical records are released to an at-fault insurance provider. In all honesty the liability of the company who discloses to the public certain records depends on the authorization that was signed and the particular facts of the release of those records. But, if a company or hospital releases records improperly at least this statute exists as a pretty significant penalty.
I previously wrote a post ending with a question for the blogosphere. The general question concerned the remedies involved when a hospital destroys medical records before the mandated 5 year holding period. Well, Michael Brown of Peterson, Berk and Cross emailed me with an answer:
A provider’s destruction of medical records would also violate HIPAA federal privacy law. Your client could file a HIPAA complaint to Dept of Health and Human services, but the best that will yield is a slap on the wrist to the provider, with no civil claim or damages.
If the records were destroyed at a time the provider should have reasonably contemplated litigation would occur (e.g. if a hospital destroys records of a patient who suffered injuries during a medical procedure and is likely to file a malpractice claim), there may be spoilage law that applies. In the federal context, you can check out the landmark Zubulake cases, which set forth serious standards and penalties for document retention. Keyciting the Zubulake cases may lead you to influential State law cases concerning spoilage.
Thanks for the answer Mike. I think there should be more someone could do when their medical records are lost or destroyed. Any legislators out there that can help us out?
I talked with one of my favorite clients today. At the end of our talk she said, “I have a professional question.” That’s when a lawyers ears perk up and you try to remember every class you ever took in law school. Who knows what topic is going to be discussed.
She asked about medical records. Her records were destroyed. She had the same primary doctor for years. That general practitioner retired. Her medical records were sent to another medical facility for ‘safe keeping.’ Well, they weren’t that safe because the facility destroyed them.
According to Wisconsin Administrative Code medical records must be “preserved” and “maintained” for at least 5 years. (See HFS 124.14(2)c)). But, what happens if the records are destroyed!
I’ll let you know the answer after I do a little research. If you know, please post a comment!
Jon Groth is a Wisconsin Personal Injury Attorney handling cases throughout Wisconsin and most recently in Sheboygan, Slinger, Pleasant Prairie and Wauwatosa.