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?