8-9-11; Synopsis: Clayton v. Ingalls Mem’l Hospital may finally disappear as medical records won’t be ‘copy-able’ when in electronic format

We continue to fight the uphill fight in this state about getting attorneys on both sides to pay reasonable charges for copies of medical records. The problem is the Appellate Court’s ruling in Clayton that so many attorneys claim required unlimited photocopies of medical records for $20. In short, the ruling doesn’t say that. That decision says a witness who has been paid a witness fee to bring original records to a hearing for inspection by the Arbitrator is not also entitled to copying charges. In our view, that ruling is nonsensical. It would be tantamount to saying a witness paid a witness fee to bring original records to a hearing for inspection is not also entitled to a free vacation or Cubs tickets. While that statement is true, it is misleading.

Please note we have read Clayton v. Ingalls well over one hundred times. It does not state a copying and handling charge for original records. No provision in the Illinois WC Act or Rules provides a number or value for copying and handling records. We have repeatedly pointed out if you sent a subpoena for a doctor’s stethoscope or medicine cabinet, you would not require him/her to make a “copy” or physical rendering of it at their sole cost to leave at court. If you wanted a “copy” or rendering made, you would have to pay for it as part of your costs.

In the Holtkamp ruling, the Appellate Court noted original medical records are the property of the physician or hospital. They control their property and can do whatever they want with it. Doctors, hospitals and other care-givers cannot be forced to make unlimited free copies of their original medical records for free, just as we can’t force you to make unlimited free copies of all the pictures on your office walls or home by sending you a subpoena and $20. If one issues a subpoena duces tecum for the keeper of original medical records to bring them to the Commission, they don’t have to make unlimited free copies in response to the subpoena. The Holtkamp ruling indicates the parties should work out a reasonable copying charge.

Medical records themselves are changing—they aren’t kept on ‘paper’ in some medical offices and can’t be ‘copied’

We have medical clients that have all original medical records in electronic form. When they get these goofy Clayton letters, unless you were going to force such medical providers to shut down their business and wheel their network to the Commission and hook it up to a monitor, the Arbitrator could not inspect the original medical records. In our view, you can’t send a subpoena duces tecum for electronic records. The only way to get “copies” is to have them print the records at their offices and bring/send the printed and certified copies to the Commission or any attorneys’ office. Trust us, they don’t have to print unlimited pages for free and they won’t.

The state comptroller has a published charge for “copies” or printed pages from electronic records—it is half of the cost of photocopying records. This is right from the Comptroller’s website:     

Annual adjustment of copying fees as required under 735 ILCS 5/8-2006

Handling charge                   $24.81

Copy pages 1 through 25    $0.93

Copy pages 26 through 50  $0.62

Copy pages in excess of 50 $0.31

Copies made from microfiche or microfilm $1.55

Electronic Records (Source: Public Act 95-480)

• Records retrieved from scanning, digital imaging, electronic information or other digital format do not qualify as microfiche or microfilm retrieval for purposes of calculating charges.

• For electronic records, retrieved from a scanning, digital imaging, electronic information or other digital format in an electronic document, a charge of 50% of the per page charge for paper copies listed above. This per page charge includes the cost of each CD Rom, DVD, or other storage media.

If you do the math, the cost of

•           50 printed pages of electronic records, including the handling charge at 50% of the overall values above is $31.78.

•           100 printed pages of electronic records is $39.28.

•           500 printed pages of electronic records is $101.28.

We admit the cost is more than $20 plus mileage but it shouldn’t break the banks of the WC industry to pay fair charges for getting medical records. In our view, medical offices that are going to electronic medical record storage are doing the practicing bar a service by making the records available at half-price. We appreciate your thoughts and comments. Please feel free to post them on our blog.