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How Far Back Can Medical Records Be Subpoenaed?

stack of folders of medical records

When filing a malpractice claim, victims may wonder, “how far back can medical records be subpoenaed?” A subpoena for medical records can generally go ten years back or less. Illinois law requires healthcare facilities to keep copies of medical records for up to 10 years. Some facilities keep these records longer than the stipulated period. A lawyer can only subpoena your medical records after exhausting the regular procedures and other options. The subpoena must meet specific conditions for a HIPAA-covered facility to respond. 

Can a Lawyer Subpoena Medical Records?

A lawyer can subpoena medical records. The lawyer must, however, use regular procedures for obtaining those records before issuing a subpoena. These procedures involve a lawyer getting a signed HIPAA release form from you. The lawyer then sends the signed consent form, along with a cover letter, to the respective healthcare provider. 

Subpoena powers apply when the regular procedures to obtain medical records are unsuccessful, and the healthcare provider fails to avail those records without a justifiable reason. In this scenario, a lawyer can use a subpoena. The subpoena legally compels the healthcare provider to give the lawyer the requested copies of medical records. 

A lawyer cannot issue a subpoena during the early stages of a medical malpractice case or any other civil suit. The court allows lawyers to use subpoena powers only when they are nearing trial or already at trial. 

Subpoena for Medical Records: Conditions That Must Be Met

Healthcare providers must comply with valid subpoenas for medical records. They generally do not respond to invalid subpoenas. A subpoena must fulfill certain conditions to be deemed valid. 

There are two broad categories of subpoenas based on the issuer. They include: 

Subpoenas Issued by Courts and Grand Juries 

This category includes judge- or magistrate-issued subpoenas. It also includes subpoenas issued by a grand jury or administrative tribunal. Healthcare providers must comply with these subpoenas and provide the requested medical records. The providers can choose to refuse to honor the request and justify their decision in writing. 

A healthcare provider that chooses to honor the request should grant only the specific information requested. Provision of additional medical records or information amounts to the unlawful release of protected health information (PHI). 

It is illegal to provide copies of medical records beyond the date specified by a subpoena. It is also illegal to provide sensitive personally identifiable information (PII) like Social Security numbers and contact details. This is especially true if the subpoena did not request that information. 

Attorney- or Court-Clerk-Issued Subpoenas

This category includes subpoenas signed and issued by lawyers and court clerks. Healthcare providers must honor these subpoenas if they meet any of the conditions below: 

  • The issuer has submitted a written statement and supporting documents showing the issuer notified the patient or his or her lawyer of the subpoena in writing. The written notice must have contained adequate information regarding the right of the patient to challenge the subpoena. The deadline for challenging the subpoena has elapsed without the patient challenging the subpoena, or the court has already resolved the motion filed by the patient. 
  • The issuer has submitted a written statement and supporting documents showing all parties in the suit have consented to a qualified protective order to keep the obtained health information confidential, or that the parties have already secured such an order. The order confines the use of the obtained health information for the lawsuit purpose only. It also requires the involved parties to destroy or return the information once the lawsuit ends.
  • The patient has provided written consent requiring the healthcare provider to disclose his or her health information and obey the subpoena. The healthcare provider should provide only the health information specified in the subpoena. 
  • The healthcare provider informs the patient that his or her medical records have been subpoenaed. The provider enlightens the patient about his or her right to contest the release of health information. The patient fails to notify the healthcare provider that the subpoena has been quashed before the expiry of the response deadline. 

A healthcare provider cannot grant medical records if a subpoena fails to meet one of the above conditions. Instead, the provider may object to the subpoena issuer on the grounds of unmet HIPAA conditions. 

How Far Back Can Medical Records Be Subpoenaed?

Under the Illinois Hospital Licensing Act, healthcare facilities must retain the medical records of every patient as per hospital policy and for at least ten years. This act implies that a subpoena for medical records in Illinois can go ten years back. The act factors in the tolled or paused statute of limitations for medical malpractice claims that minors are eligible for in some cases. 

The statute requires healthcare providers to retain medical records beyond the stipulated 10-year period upon receiving written notice of an upcoming or pending lawsuit involving those records. In this case, the healthcare provider can only destroy the medical records after receiving written notice of the conclusion of the lawsuit or twelve years from when those records were created, whichever happens first. 

How Can a Medical Malpractice Lawyer Help

Medical records, including doctor’s notes, consultation records, diagnostic study results, and prescriptions, are essential in building a strong medical malpractice case. They help demonstrate a medical provider’s medical negligence. Obtaining these records on your own can be a challenge. 

An aggressive medical malpractice lawyer can obtain the necessary medical records to build a strong case quickly and hassle-free. The lawyer can request these records and follow up with the healthcare provider persistently to obtain them in time. The lawyer can also subpoena your medical records if necessary.

Your lawyer can also guide you on how to file a medical malpractice claim. The lawyer can prepare a compelling demand letter and send it to the defendant’s insurer. He or she can also persistently negotiate with the insurer to help you secure reasonable compensation. 

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