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Developed and maintained by the Division of Legislative Automated Systems.
2004 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 8.01-413 of the Code of Virginia is amended and reenacted as follows:
§ 8.01-413. Certain copies of health care provider's records or papers of patient admissible; right of patient, his attorney and authorized insurer to copies of such records or papers; subpoena; damages, costs and attorney's fees.
A. In any case where the hospital, nursing facility, physician's, or other health care provider's original records or papers of any patient in a hospital or institution for the treatment of physical or mental illness are admissible or would be admissible as evidence, any typewritten copy, photograph, photostatted copy, or microphotograph or printout or other hard copy generated from computerized or other electronic storage, microfilm, or other photographic, mechanical, electronic or chemical storage process thereof shall be admissible as evidence in any court of this Commonwealth in like manner as the original, if the printout or hard copy or microphotograph or photograph is properly authenticated by the employees having authority to release or produce the original records.
Any hospital, nursing facility, physician, or other health care provider whose
records or papers relating to any such patient are subpoenaed for production as
provided by law may comply with the subpoena by a timely mailing to the clerk
issuing the subpoena or in whose court the action is pending properly
authenticated copies, photographs or microphotographs in lieu of the originals.
The court whose clerk issued the subpoena or, in the case of an attorney-issued
subpoena, in which the action is pending, may, after notice to such hospital,
nursing facility, physician, or other health care provider, enter an order
requiring production of the originals, if available, of any stored records or
papers whose copies, photographs or microphotographs are not sufficiently
legible. The party requesting the subpoena duces tecum or on whose behalf an
attorney-issued subpoena duces tecum was issued shall be liable for the
reasonable charges of the hospital, nursing facility, physician, or other
health care provider for the service of maintaining, retrieving, reviewing,
preparing, copying and mailing the items produced. Except for copies of X-ray
photographs, however, such charges shall not exceed fifty cents $.50 for each
page up to fifty 50 pages and twenty-five cents $.25 a page thereafter for
copies from paper or other hard copy generated from computerized or other electronic storage, or other photographic, mechanical,
electronic, imaging or chemical storage process and one dollar $1 per page for
copies from microfilm or other micrographic process, plus all postage and shipping costs and a search
and handling fee not to exceed ten dollars $10.
B. Copies of hospital, nursing facility, physician's, or other health care
provider's records or papers shall be furnished within fifteen 15 days of such
request to the patient, his attorney, his executor or administrator, or an
authorized insurer upon such patient's, attorney's, executor's,
administrator's, or authorized insurer's written request, which request shall
comply with the requirements of subsection E of § 32.1-127.1:03. However,
copies of a patient's records shall not be furnished to such patient where the
patient's treating physician has made a part of the patient's records a written
statement that in his opinion the furnishing to or review by the patient of
such records would be injurious to the patient's health or well-being, but in
any such case such records shall be furnished to the patient's attorney or
authorized insurer within fifteen 15 days of the date of such request. A
reasonable charge may be made for the service of maintaining, retrieving, reviewing and preparing
such copies. Except for copies of X-ray photographs, however, such charges shall not
exceed fifty cents $.50 per page for up to fifty 50 pages and twenty-five
cents $.25 a page thereafter for copies from paper or other hard copy
generated from computerized or other electronic storage, or other photographic, mechanical,
electronic, imaging or chemical storage process and one dollar $1 per page for
copies from microfilm or other micrographic process, plus all postage and shipping costs and a search
and handling fee not to exceed ten dollars $10. Any hospital, nursing facility,
physician, or other health care provider receiving such a request from a patient's attorney or
authorized insurer shall require a writing signed by the patient confirming the attorney's or
authorized insurer's authority to make the request and shall accept a
photocopy, facsimile, or other copy of the original signed by the patient as if
it were an original.
C. Upon the failure of any hospital, nursing facility, physician, or other
health care provider to comply with any written request made in accordance with
subsection B within the period of time specified in that subsection and within
the manner specified in subsections E and F of § 32.1-127.1:03, the patient,
his attorney, his executor or administrator, or authorized insurer may cause a
subpoena duces tecum to be issued. The subpoena may be issued (i) upon filing a request
therefor with the clerk of the circuit court wherein any eventual suit would be required
to be filed, and upon payment of the fees required by subdivision A 18 of §
17.1-275, and fees for service or (ii) by the patient's attorney in a pending civil
case in accordance with § 8.01-407 if issued by such attorney at least five
business days prior to the date that production of the record is desired without
payment of the fees established in subdivision A 23 of § 17.1-275. The subpoena
shall be returnable within twenty 20 days of proper service, directing the
hospital, nursing facility, physician, or other health care provider to produce
and furnish copies of the reports and papers to the clerk who shall then make
the same available to the patient, his attorney or authorized insurer. If the
court finds that a hospital, nursing facility, physician, or other health care
provider willfully refused to comply with a written request made in accordance
with subsection B, either by willfully or arbitrarily refusing or by imposing a
charge in excess of the reasonable expense of making the copies and processing
the request for records, the court may award damages for all expenses incurred
by the patient or authorized insurer to obtain such copies, including court
costs and reasonable attorney's fees.
D. The provisions of subsections A, B, and C hereof shall apply to any health
care provider whose office is located within or without the Commonwealth if the
records pertain to any patient who is a party to a cause of action in any court
in the Commonwealth of Virginia, and shall apply only to requests made by an
the patient, his attorney, his client executor or administrator, or
any authorized insurer, in anticipation of litigation or in the course of litigation.
E. Health care provider, as used in this section, shall have the same meaning as provided in § 32.1-127.1:03 and shall also include an independent medical copy retrieval service contracted to provide the service of retrieving, reviewing, and preparing such copies for distribution.
F. Notwithstanding the authorization to admit as evidence patient records in the form of microphotographs, prescription dispensing records maintained in or on behalf of any pharmacy registered or permitted in Virginia shall only be stored in compliance with §§ 54.1-3410, 54.1-3411 and 54.1-3412.