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Developed and maintained by the Division of Legislative Automated Systems.
1995 SESSION
LD3460146Be 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 or his attorney 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, photostatic 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 under this section or the Rules of the Supreme Court of Virginia
may comply with the subpoena by a timely mailing to the clerk issuing the
subpoena properly authenticated copies, photographs or microphotographs in
lieu of the originals. The court whose clerk issued the subpoena 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 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, not to exceed fifty cents for each page up to fifty pages and
twenty-five cents a page for the remainder. Except for
copies of x-ray photographs, however, such charges shall not exceed one
dollar per page for copies from paper and two dollars per page for copies
generated from computerized or other electronic storage, microfilm, or other
photographic, mechanical, electronic or chemical storage process, plus all
postage and shipping costs and a search fee of no more than fifteen
dollars.
B. Copies of hospital, nursing facility, physician's, or other health care
provider's records or papers shall be furnished within fifteen
thirty days of such request to the patient or his attorney
upon such patient's or attorney's written request. 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
within fifteen thirty days of the date of such
request. A reasonable charge, not to exceed fifty cents a page for up to
fifty pages and twenty-five cents a page for the remainder, and a fee for
searching, handling and mailing not to exceed ten dollars, 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 one dollar per page for copies from paper and two dollars
per page for copies generated from computerized or other electronic storage,
microfilm, or other photographic, mechanical, electronic or chemical storage
process, plus all postage and shipping costs and a search fee of no more than
fifteen dollars. Any hospital, nursing facility, physician, or other
health care provider receiving such a request from a patient's attorney may
require a writing signed by the patient confirming the attorney's authority
to make the request. Records or papers relating to a deceased patient, or a
patient whose treating physician determines to be mentally incompetent to
consent, or physically incapable of consenting, shall be provided to any of
the following persons, in order of priority stated, upon the written request
of such person, unless the hospital, nursing facility, physician, or other
health care provider is not aware of any available person in a
higher class: (i) the personal representative of a deceased patient; (ii) the
legal guardian or committee of an incompetent or incapacitated patient; (iii)
the spouse; (iv) an adult son or daughter; (v) either parent; (vi) an adult
brother or sister; or (vii) any of the other relatives of the patient in the
descending order of blood relationship.
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, the patient or his attorney may by affidavit filed with the clerk of the circuit court wherein any eventual suit, if any, would be required to be filed, upon payment of the fees required by subdivision (23) of § 14.1-112, and fees for service, request that the clerk subpoena such records or papers. The clerk shall thereupon issue a subpoena, returnable within twenty 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 him, whereupon, the clerk shall make the same available to the patient or his attorney. 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 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 attorney, or his client, 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 § 8.01-581.1 and shall also include an independent medical copy retrieval service contracted to provide the service of retrieving, reviewing, and preparing such copies for distribution.