As every insurance defense practitioner knows, it is vitally important to obtain the Plaintiff’s medical records during the discovery period of litigation. Medical records will shed light on the Plaintiff’s injuries, treatment, billing and prior medical conditions and treatment. Further, the medical records are necessary if a defense practitioner seeks to have the Plaintiff undergo an Independent Medical Examination (IME).
Typically, a defense practitioner will request that the Plaintiff execute medical authorizations to obtain their medicals pursuant to La. R.S. 40:1165.1 (A)(2)(b)(i). Once executed, the medical authorizations will be forwarded to each of the Plaintiff’s medical providers for the records including films.
However, it is becoming increasingly common for health providers to ignore the medical authorization request, not produce records until months later or produce incomplete records. Even following up with these medical providers will not yield complete medical records as emails or phone calls may go unanswered. And depending on trial discovery deadlines, the defense practitioner may not have the luxury of time to wait for the medical records to be provided.
Therefore, La R.S.40:1165.1(c) provides a remedy for this situation which states:
(c) If a copy of the record is not provided within a reasonable period of time, not to exceed fifteen days following the receipt of the request and written authorization, and production of the record is obtained through a court order or subpoena duces tecum, the health care provider shall be liable for reasonable attorney fees and expenses incurred in obtaining the court order or subpoena duces tecum. Such sanctions shall not be imposed unless the person requesting the copy of the record has by certified mail notified the health care provider of his failure to comply with the original request, by referring to the sanctions available, and the health care provider fails to furnish the requested copies within five days from receipt of such notice. Except for their own gross negligence, such health care providers shall not otherwise be held liable in damages by reason of their compliance with such request or their inability to fulfill the request.
In sum, La R.S.40:1165.1(c) authorizes a Defendant to be awarded reasonable attorney’s fees and expenses incurred if the medical provider does not provide a copy of the medical records at least 15 days following the receipt of the request and authorization and production of the medical records is obtained through a court order or subpoena duces tecum. However, importantly, sanctions shall not be imposed unless the person requesting the copy of the record has by certified mail notified the health care provider of his failure to comply with the original request, by referring to the sanctions available, and the health care provider fails to furnish the requested copies within five days from receipt of such notice.
In practice, it is this defense practitioner’s experience that once the medical provider receives correspondence citing La R.S.40:1165.1(c) and its penalties, the medical records are quickly produced. After all, no medical treater wants to pay reasonable attorneys fees and costs. Therefore, LA R.S.40:1165.1(c) is a valuable tool in obtaining Plaintiff’s medical records from recalcitrant or dilatory medical providers.
The post La. R.S. 40:1165.1(c): A Powerful Tool for Obtaining Plaintiff’s Medical Records Without Delay appeared first on MBLB.