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Attorney Fee Provision of Hospital Records Act Does Little to Encourage Timely Compliance

By Michael J. Mersot

The Illinois Hospital Records Act (735 ILCS 5/8-2001) requires medical providers to produce a patient’s medical records within 30 days of a receipt of a written request for records. The Act also provides that the patient may recover attorney fees from a non-compliant hospital if the patient is forced to compel compliance with his request for records through the courts.

As a matter of first impression, the Illinois Appellate Court recently held in Larson v. Wexford Health Services, Inc., that in order to invoke the attorney fee provision, a patient must not only file a lawsuit to obtain the records, the suit must culminate in an order for production of the records sought. That is to say, if a hospital that received a records request fails to comply with that request, but eventually does so while the suit to compel is pending, no attorney fees may be awarded.

In Larson, the patient filed suit to obtain his records once over 60 days had elapsed since his written request. The hospital initially fought the suit on multiple grounds, and accordingly plaintiff incurred substantial fees in litigation over the hospital’s position. Ultimately, the hospital produced the records, and did so during the course of litigation, but before judgment was entered for the patient in the patient’s lawsuit to compel the records. The patient sought over $30,000 in attorney fees pursuant to the Hospital Records Act, but the appellate court refused to award any such attorney fees. Instead the court held that the Hospital Records Act only allows the patient to recover attorney fees from the hospital if the hospital is compelled to comply by court order. Because the hospital voluntarily complied with the request to produce the patient’s records, albeit after the litigation started and before a final court order to compel it to do so was entered, no attorney fees were warranted.

This case emphasizes that the Medical Records Act provides little to penalize late production of records. A healthcare provider may refuse to comply for months and even fight a suit to compel, so long as it produces the records prior to a judgment in favor of the patient.

Originally published in the Fall 2012 edition of Quinn Quarterly.

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