Your right to family medical records – HIPAA September 2, 2009

If a doctor, hospital or nursing home tells you that you cannot see your family member’s medical records because they are prohibited by law from disclosing them under HIPAA, there is a reasonable chance that they are doing what is known as “hiding behind HIPAA.” When they are being honest, some health-care providers will admit that they sometimes tell family members they cannot disclose records because it is inconvenient, they don’t want to take the time, or they are afraid of lawsuits.

If someone tells you that you cannot see your family’s medical records because of HIPAA, show them this article. The federal Department of Health and Human Services, Office for Civil Rights, published a “guidance” dated December 3, 2002 and revised April 3, 2003 that explains the circumstances in which health care providers are in fact authorized to disclose medical records to family members. The Office for Civil Rights also published a “Guide to the HIPAA Privacy Rule” that explains the rule in plain language.

Here is what the law allows:  A health care provider can discuss a patient’s health information with you if you are present with the patient and the patient agrees or when given the opportunity, does not object. For example an emergency room doctor can talk to the patient in front of a family member.  A doctor can disclose information about a patient’s difficulty in walking to the patient’s sister who may be driving the patient home.

Even if the patient is not present or is incapacitated a health care provider can share information with a family member involved in the patient’s care if it is in the best interest of the patient. For example a surgeon may talk about the patient’s condition to a spouse while the patient is unconscious. And a health care provider can provide information about a patient’s medication to a family member who calls with questions about a particular prescription.

A health care provider can discuss a patient’s care over the telephone without obtaining proof of a person’s identity. Family members can pick up a filled prescription, medical supplies, x-rays, and other similar items for the patient. Information may also be disclosed in writing.

For additional information about disclosure of medical records by specific types of health care providers see the FAQ nursing home and medical malpractice section of our website at ZQLAWYERS.COM.