Providers May Be Liable in Negligence for a Failure to Timely and Completely Respond to Patient Requests for Medical Records

In K. Simpkins v. T.L. O'Connor, M.D. et al, the plaintiff sued Willamette Falls Hospital (the "Hospital") for negligence. The negligence alleged was the Hospital's failure to produce all of the medical records pertaining to the care of her late husband until two years after she first requested those records. The records had initially been requested and also were subpoenaed. The injury claimed to have been suffered as a consequence of the alleged negligence was that Ms. Simpkins was deprived of the ability to bring a medical malpractice suit against the defendant and one of its employed physicians. The trial court concluded that these were insufficient facts to state a claim for negligence against the Hospital and dismissed the complaint. That decision was reversed by the Court of Appeals which ruled that the plaintiff could proceed with her suit.

The records that the Hospital failed to produce were those of a stress test that showed abnormal results. The medical malpractice practice claim was that the physician failed to take any action in response to the abnormal readings, including a failure to refer Mr. Simpkins to a cardiologist. Mr. Simpkins suffered a fatal heart attack some 18 months later. Because the records were not timely produced, the statute of limitations for claims based on those tests expired.

The core issue was whether the Hospital owed a duty, or had " 'obligations arising out of [the Hospital's] particular status or relationships, or from legislation, beyond the generalized standards that the common law of negligence imposes on persons at large." (quoting Fazzolari v. Portland school Dist. No. 1J, 303 Or 1, 10, 734 P2d 1326 (1987)) (emphasis in original). The appellate court found that such a duty was created by a "former" Oregon statute providing that a "a health care provider must disclose a patient's medical records after receiving a written release authorization that directs the health care provider to produce the patient's medical medical records."

The appellate court then examined the issue whether the statute was intended to protect against the harm suffered by the plaintiff - i.e. the expiration of a statute of limitations period depriving her of the ability to bring a timely medical malpractice action. It concluded that the staute was unclear and that it was necessary to examine the legislative history to determine the Legislature's intent. The court found that the statute had been proposed by the Oregon State Bar Procedure and Practice Committee to " 'cure a recurring problem in litigation . . .untimely discovery that complete patient records have not been provided in response to a patient's request'." Based on this history, the appellate court found that: "the legislature imposed a duty to disclose personal records precisely because of concerns that that patients' ability to pursue personal injury claims would be compromised unless health care providers fully complied with requests for medical records."

Client Caution: Many states have statutes that obligate health care providers to produce patient records upon patients' or other authoritative requests. While they may differ in their specific language and legislative history from the Oregon statute at issue inSimpkins, this decision makes it clear that the courts can and may be willing to treat failures to timely and fully respond to patient medical requests as actionable negligence. Because of such rulings, patients who do not receive timely receive complete responses to their record requests can sue the providers for negligence. In such cases, patient plaintiffs will seek to prove that they more likely than not would have prevailed in the underlying malpractice action, and will have the ability to prejudice the jury in their favor by focusing on the provider's violation of its statutory obligation to produce requested records. Because of this potential new liability, providers must make sure that they have effective systems for timely and complete responses to patients' requests for medical records.