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Big League Play #1158: How to Slide Past Third-Party Markups in Medical Record Retrievals


In the field of personal injury law, medical records are pivotal, anchoring cases with tangible evidence. They bridge the gap between legal theories and factual, medical realities, serving as crucial tools in the crafting of compelling, substantiated arguments. The current trajectory of the global electronic medical records market, with an anticipated valuation of $17.6 billion in 2023, underscores the magnitude and economic significance of this sector. A portion of these burgeoning costs, intensified by the outsourcing of record-keeping responsibilities to third-party entities, inadvertently trickles down to the patient. These third-party custodians, while facilitating accessibility, often impose a premium beyond the statutory confines delineated in CA Evidence Code §1158, thereby escalating the financial encumbrance borne by our clients.


If you’re familiar with names like ‘ChartSwap’, ‘HealthPort’, or ‘Sharecare’ it is highly probable you’ve been paying a premium above and beyond the statutory allowance in order to obtain your clients’ hospital bills or other medical records. While these services have offered a quick and relatively easy option for obtaining records, they have come at an unnecessary and often burdensome expense to your client. You may be unfamiliar with another way of obtaining records and may even have been told by a hospital that there “is no other way”. Lies! Unfortunately, its just more profitable for the medical providers to outsource this responsibility and send you somewhere else for your client’s records.


This article aims to assist the practicing personal injury attorney by offering a legal way to circumvent these 3rd party services, save your client money, and be a better advocate. By mastering the art of cost-efficient record retrieval, we safeguard not just the client's resources, but also fortify the attorney-client relationship. By leveraging legal acumen to curtail avoidable expenditures, we manifest a stewardship that resonates with diligence, strategic foresight, and a relentless commitment to advocating for our clients’ best interests.


The Legal Play - California Evidence Code §1158

California Evidence Code §1158 outlines a procedure for an attorney to obtain copies of a patient's health records from a healthcare provider or hospital. You should read the code section, but here’s the TLDR and play by play:


1. Written Request:

Your request must be in writing and directed to the hospital or the specific healthcare provider in possession of the medical records.

2. Client Authorization:

Ensure that you have proper authorization from your client to access their medical records. This typically means having a signed and dated HIPAA authorization form.


3. Contents of the Request:

The request should specify that it is being made pursuant to California Evidence Code §1158. Clearly identify the patient whose records are being requested. Specify the date of injury or the date range for which records are sought. Specify the type of records you are requesting (e.g., medical, billing).


4. Service of Request:

Serve the request to the hospital or healthcare provider. This could typically be done via mail or any other method that ensures the receipt of the request by the holder of the records.


5. Response Time:

Under the Evidence Code §1158, the healthcare provider has five (5) days to comply with the request, excluding weekends and holidays. They are required to provide copies of the records, or allow for the inspection of original records as requested.

6. Payment:

You (the requestor) should be prepared to pay reasonable costs associated with copying and mailing the records. The law specifies that a reasonable fee may be charged by the healthcare provider for the actual costs of copying and mailing the requested records. What’s reasonable is spelled out in the statute and currently that’s $0.10 - $0.20 per page or not to exceed $15 if the attorney or the attorney’s representative is inspecting and copying. Costs are found in section (2)(f)(g). It’s affordable.


7. Failure to Comply:

If the hospital fails to comply within the stipulated timeframe, you file a motion to compel production of records. More on that later.


*A properly formatted sample template is provided for you below


Current Leading Authority:

BUSBY V. BACTES IMAGING SOLUTIONS, LLC (JAN. 19, 2022, D078204) __ CAL.APP.5TH __ [2022 WL 167582]

In the case against Bactes Imaging Solutions, attorney Spencer Busby alleged that Bactes violated California Evidence Code section 1158 by charging excessive rates for copying and delivering medical records. The trial court, followed by the Court of Appeal, ruled in favor of Bactes, affirming that it operated as an agent for attorneys, not healthcare providers, and thus was not restricted by section 1158’s limitations on copying costs. The courts referenced Thornburg v. Superior Court (2006), emphasizing liability for agents of healthcare providers only when acting to their own benefit and the interests of entities explicitly covered by the statute. Bactes’ role was to collect and make medical records available for inspection and/or copying, leaving attorneys with options to inspect, use another service for copying, or engage Bactes separately for photocopying. Consequently, the court found Bactes’ charges above the statutory rate permissible as section 1158’s constraints were applicable solely to healthcare providers and their agents, excluding agents acting on behalf of requesting attorneys.


APPLICATION: If you pay a 3rd party records retrieval service like Sharecare, this business becomes your agent and they are legally allowed to charge you more than the statutory limits. The attorney-agent relationship can contract at whatever price they desire. Thus, in order to stay within the affordable bounds provided by §1158, the attorney must reject being referred to a 3rd party service. If your only contact is with the 3rd party service, then you must either require their fees fall in line with the statutory limits or you must reject their service. The hospital or medical provider is required to open their doors for inspection to the attorney or the attorney’s representative. They must accommodate your desire to make an inspection and copy the records yourself.


IN PRACTICE

  1. On every case, we ask our clients to request a free copy of their medical records from the hospital. This is the easiest and cheapest way to obtain the records and works more often than not.

  2. If the client is unable to do so for whatever reason, this is when we mail and fax the §1158 letter to the hospital or facility where the client was treated.

  3. Theres a good chance the hospital will contact you within 5 days and try to send you to their 3rd party service. This is where the attorney must reject being sent away to an agent and insist the hospital provide the records or make them available for inspection and/or copy.

  4. If the hospital requires the request be made through its 3rd party service, the attorney should request the records from the agent and submit the same §1158 letter as was submitted to the hospital.

  5. If the 3rd party service refuses to accommodate and comply with the §1158 statutory limitations, the attorney must communicate this in writing to the hospital and offer the hospital an opportunity to provide the records for copy or inspection at no more cost than is statutorily allowed.

  6. If the hospital and 3rd party service have been unwilling to accommodate and abide by the statutory limitations, a motion to compel the production of documents can be used.


In my experience, as soon as the motion is filed with the court and the hospital is noticed, the hospital and/or its 3rd party records service will reach contact the attorney and offer to provide the records at no cost. The attorney can then write a letter to the hospital and demand all reasonable expenses, including attorney’s fees, incurred in enforcing the statute.

Feel free to reach out with any questions or comments regarding this post. We are available to engage with other personal injury attorneys, clarify any points in the article, or discuss related topics in further detail. Your insights and inquiries are always welcome around the horn!


Kyle J. Wunderli, Attorney

Big League Law, Inc.

(949) 777-5611









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