Surprise No Medical Records!!

Surgeons implanted a biliary stent in plaintiff during emergency abdominal surgery in 1996. Plaintiff alleges he was unaware it was there until August 2010 after he sought treatment for abdominal pain. In April 2011, plaintiff brought an action against the health care providers who treated him in 1996 and 1997. Defendants successfully demurred on statute of limitations grounds. The appellate court reversed, stating there was a tolling under the foreign body exception set forth in Code of Civil Procedure section 340.5.

On a separate issue, plaintiff alleged he requested access to his hospital medical records in 2010, and was denied access. The hospital response stated, “Due to California Retention Laws, these medical records are no longer available.” He alleged he was damaged under Health and Safety Code section 123110. In the trial court, plaintiff also argued he was entitled to his records in anticipation of litigation pursuant to Evidence Code section 1158. As damages, plaintiff sought an award of prelitigation attorney fees and investigation costs. The trial court sustained defendants’ demurrer on this cause of action without leave to amend. The appellate court affirmed, holding section 123110 contemplates a proceeding to secure access to one’s medical records and a discretionary award of attorney fees and costs to the prevailing party, and section 123120 does not authorize the remedy plaintiff sought.  The appellate court noted plaintiff had a duty to mitigate his damages and he could have applied to the court under Code of Civil Procedure section 1985.7 for an order to show cause why the records should not be produced.  (Maher v. County of Alameda  (Cal. App. First Dist., Div. 1; February 18, 2014) 223 Cal.App.4th 1340, [168 Cal.Rptr.3d 56].)