2006 Code of Virginia § 8.01-413 - Certain copies of health care provider\'s records or papers of patient admissible; right of patient...

8.01-413. Certain copies of health care provider's records or papers ofpatient admissible; right of patient, his attorney and authorized insurer tocopies of such records or papers; subpoena; damages, costs and attorneys'fees.

A. In any case where the hospital, nursing facility, physician's, or otherhealth care provider's original records or papers of any patient in ahospital or institution for the treatment of physical or mental illness areadmissible or would be admissible as evidence, any typewritten copy,photograph, photostatted copy, or microphotograph or printout or other hardcopy generated from computerized or other electronic storage, microfilm, orother photographic, mechanical, electronic or chemical storage processthereof shall be admissible as evidence in any court of this Commonwealth inlike manner as the original, if the printout or hard copy or microphotographor photograph is properly authenticated by the employees having authority torelease or produce the original records.

Any hospital, nursing facility, physician, or other health care providerwhose records or papers relating to any such patient are subpoenaed forproduction as provided by law may comply with the subpoena by a timelymailing to the clerk issuing the subpoena or in whose court the action ispending properly authenticated copies, photographs or microphotographs inlieu of the originals. The court whose clerk issued the subpoena or, in thecase of an attorney-issued subpoena, in which the action is pending, may,after notice to such hospital, nursing facility, physician, or other healthcare provider, enter an order requiring production of the originals, ifavailable, of any stored records or papers whose copies, photographs ormicrophotographs are not sufficiently legible.

Except as provided in subsection G, the party requesting the subpoena ducestecum or on whose behalf an attorney-issued subpoena duces tecum was issuedshall be liable for the reasonable charges of the hospital, nursing facility,physician, or other health care provider for the service of maintaining,retrieving, reviewing, preparing, copying and mailing the items produced.Except for copies of X-ray photographs, however, such charges shall notexceed $0.50 for each page up to 50 pages and $0.25 a page thereafter forcopies from paper or other hard copy generated from computerized or otherelectronic storage, or other photographic, mechanical, electronic, imaging orchemical storage process and $1 per page for copies from microfilm or othermicrographic process, plus all postage and shipping costs and a search andhandling fee not to exceed $10.

B. Copies of hospital, nursing facility, physician's, or other health careprovider's records or papers shall be furnished within 15 days of receipt ofsuch request to the patient, his attorney, his executor or administrator, oran authorized insurer upon such patient's, attorney's, executor's,administrator's, or authorized insurer's written request, which request shallcomply with the requirements of subsection E of 32.1-127.1:03.

However, copies of a patient's records shall not be furnished to such patientwhen the patient's treating physician or clinical psychologist, in theexercise of professional judgment, has made a part of the patient's records awritten statement that in his opinion the furnishing to or review by thepatient of such records would be reasonably likely to endanger the life orphysical safety of the patient or another person, or that such health recordsmake reference to a person, other than a health care provider, and the accessrequested would be reasonably likely to cause substantial harm to suchreferenced person. In any such case, if requested by the patient or hisattorney or authorized insurer, such records shall be furnished within 15days of the date of such request to the patient's attorney or authorizedinsurer, rather than to the patient.

If the records are not provided to the patient in accordance with thissection, then, if requested by the patient, the hospital, nursing facility,physician, or other health care provider denying the request shall complywith the patient's request to either (i) provide a copy of the records to aphysician or clinical psychologist of the patient's choice whose licensure,training, and experience, relative to the patient's condition, are at leastequivalent to that of the treating physician or clinical psychologist uponwhose opinion the denial is based, who shall, at the patient's expense, makea judgment as to whether to make the records available to the patient or (ii)designate a physician or clinical psychologist, whose licensure, training,and experience, relative to the patient's condition, are at least equivalentto that of the treating physician or clinical psychologist upon whose opinionthe denial is based and who did not participate in the original decision todeny the patient's request for his records, who shall, at the expense of theprovider denying access to the patient, review the records and make ajudgment as to whether to make the records available to the patient. Ineither such event, the hospital, nursing facility, physician, or other healthcare provider denying the request shall comply with the judgment of thereviewing physician or clinical psychologist.

Except as provided in subsection G, a reasonable charge may be made by thehospital, nursing facility, physician or other health care providermaintaining the records for the cost of the services relating to themaintenance, retrieval, review, and preparation of the copies of the records.Except for copies of X-ray photographs, however, such charges shall notexceed $0.50 per page for up to 50 pages and $0.25 a page thereafter forcopies from paper or other hard copy generated from computerized or otherelectronic storage, or other photographic, mechanical, electronic, imaging orchemical storage process and $1 per page for copies from microfilm or othermicrographic process, a fee for search and handling, not to exceed $10, andall postage and shipping costs. Any hospital, nursing facility, physician, orother health care provider receiving such a request from a patient's attorneyor authorized insurer shall require a writing signed by the patientconfirming the attorney's or authorized insurer's authority to make therequest and shall accept a photocopy, facsimile, or other copy of theoriginal signed by the patient as if it were an original.

C. Upon the failure of any hospital, nursing facility, physician, or otherhealth care provider to comply with any written request made in accordancewith subsection B within the period of time specified in that subsection andwithin the manner specified in subsections E and F of 32.1-127.1:03, thepatient, his attorney, his executor or administrator, or authorized insurermay cause a subpoena duces tecum to be issued. The subpoena may be issued (i)upon filing a request therefor with the clerk of the circuit court whereinany eventual suit would be required to be filed, and upon payment of the feesrequired by subdivision A 18 of 17.1-275, and fees for service or (ii) bythe patient's attorney in a pending civil case in accordance with 8.01-407without payment of the fees established in subdivision A 23 of 17.1-275. Asheriff shall not be required to serve an attorney-issued subpoena that isnot issued at least five business days prior to the date production of therecord is desired. The subpoena shall be returnable within 20 days of properservice, directing the hospital, nursing facility, physician, or other healthcare provider to produce and furnish copies of the reports and papers to theclerk who shall then make the same available to the patient, his attorney orauthorized insurer. If the court finds that a hospital, nursing facility,physician, or other health care provider willfully refused to comply with awritten request made in accordance with subsection B, either by willfully orarbitrarily refusing or by imposing a charge in excess of the reasonableexpense of making the copies and processing the request for records, thecourt may award damages for all expenses incurred by the patient orauthorized insurer to obtain such copies, including court costs andreasonable attorney's fees.

D. The provisions of subsections A, B, and C hereof shall apply to any healthcare provider whose office is located within or without the Commonwealth ifthe records pertain to any patient who is a party to a cause of action in anycourt in the Commonwealth of Virginia, and shall apply only to requests madeby the patient, his attorney, his executor or administrator, or anyauthorized insurer, in anticipation of litigation or in the course oflitigation.

E. Health care provider, as used in this section, shall have the same meaningas provided in 32.1-127.1:03 and shall also include an independent medicalcopy retrieval service contracted to provide the service of retrieving,reviewing, and preparing such copies for distribution.

F. Notwithstanding the authorization to admit as evidence patient records inthe form of microphotographs, prescription dispensing records maintained inor on behalf of any pharmacy registered or permitted in Virginia shall onlybe stored in compliance with 54.1-3410, 54.1-3411 and 54.1-3412.

G. The provisions of this section governing fees that may be charged by ahealth care provider whose records are subpoenaed or requested pursuant tothis section shall not apply in the case of any request by a patient for hisown records, which shall be governed by subsection J of 32.1-127.1:03. Thissubsection shall not be construed to affect other provisions of state orfederal statute, regulation or any case decision relating to charges byhealth care providers for copies of records requested by any person otherthan a patient when requesting his own records pursuant to subsection J of 32.1-127.1:03.

(Code 1950, 8-277.1; 1954, c. 329; 1976, c. 50; 1977, cc. 208, 617; 1981,c. 457; 1982, c. 378; 1990, cc. 99, 320; 1992, c. 696; 1994, cc. 390, 572;1995, c. 586; 1997, c. 682; 1998, c. 470; 2000, cc. 813, 923; 2001, c. 567;2002, cc. 463, 654; 2004, cc. 65, 335, 742, 1014; 2005, cc. 642, 697.)

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