Felicia Whitcomb was 89 and lived in a skilled nursing facility here in Northern California. Felicia required two CNAs to lift her safely out of bed. Unfortunately, her care facility was understaffed, which meant that the staff had to take shortcuts. One day, Felicia’s nursing assistant tried to get her out of bed without the required 2 person assistance. You can guess what happened – the CNA dropped her and Felicia suffered multiple fractures and a massive head injury. She died from the injuries in a hospital a few days later.
To understand what happened, Felicia’s family contacted the skilled nursing facility and asked for her medical records. At first, the facility said, no, they weren’t going to release the records, even though her family had a power of attorney and a death certificate indicating that they were next of kin. Then, the facility gave a series of excuses, including one excuse which said that Felicia’s records were held by the parent corporation in deep storage, so it would take months to produce them. After more blocking and stalling, the family called our law firm, asking for help.
The response Felicia’s family got from the skilled nursing facility is surprisingly common. Such institutions and their corporate parent companies are always reluctant to give medical record to the families of deceased residents, especially if there is a possibility that the records will implicate them in an elder abuse or neglect case. The longer they stall, the more they hope that things will settle down and the families will go away. And it’s true that unless an attorney is involved, the chances of a family receiving all or even some of their loved one’s medical records is vanishingly small. The key in cases like this is persistence and patience because the law is on your side. Here are some specifics:
- Cal Health & Safety Code § 123110(b) states:
Additionally, any patient or patient’s representative shall be entitled to copies of all or any portion of the patient records that he or she has a right to inspect, upon presenting a written request to the health care provider specifying the records to be copied, together with a fee to defray the cost of copying, that shall not exceed twenty-five cents ($0.25) per page or fifty cents ($0.50) per page for records that are copied from microfilm and any additional reasonable clerical costs incurred in making the records available. The health care provider shall ensure that the copies are transmitted within 15 days after receiving the written request.
Patient and/or personal representatives are entitled to copies of all patient records upon written request under California and HIPAA regulations. (45 CFR 164.508; Cal Health & Safety Code § 123110 (b).) There are numerous possibilities that would allow a family member (of an elder, dependent adult or minor) to gain access to medical records.
- Cal Health & Safety Code Section 123105 defines “Patient’s representative” or “representative as the following:
- A parent or guardian of a minor who is a patient.
- The guardian or conservator of the person of an adult patient.
- An agent as defined in Section 4607 of the Probate Code, to the extent necessary for the agent to fulfill his or her duties as set forth in Division 4.7 (commencing with Section 4600) of the Probate Code.
- The beneficiary as defined in Section 24 of the Probate Code or personal representative as defined in Section 58 of the Probate Code, of a deceased patient.
- California Probate Code section 58 defines Personal Representative as: executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status.
- California Probate Code section 24 defines “Beneficiary” as:
- As it relates to the intestate estate of a decedent, means an heir.
- As it relates to the testate estate of a decedent, means a devisee.
- As it relates to a trust, means a person who has any present or future interest, vested or contingent.
- As it relates to a charitable trust, includes any person entitled to enforce the trust.
Let us sum up the law for you: A patient’s family member who has a Durable Power of Attorney for health care decisions, or a patient’s heir, guardian or conservator, are all entitled to the patient’s medical records.
If you believe your loved one has been the victim of elder abuse or neglect in a nursing home or assisted living facility, or believe your family has a wrongful death claim, please call me directly. We are dedicated to representing families whose elders and dependent adults who have been injured, neglected or abused.