Amended in Assembly May 1, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2059

Introduced by Assembly Member Muratsuchi

February 20, 2014

An act to amend Section 1158 of the Evidence Code, relating to evidence.

LEGISLATIVE COUNSEL’S DIGEST

AB 2059, as amended, Muratsuchi. Medical records: electronic delivery.

Existing law requires certain enumerated health care providers to make all of a patient’s records under their custody or control available for inspection and copying by an attorney at law, or his or her representative, who presents a written authorization therefor, as specified. begin insert Existing law provides that a person or entity that fails to make the records available 5 days after the presentation of the written authorization may be subject to reasonable expenses incurred to enforce these provisions. Existing law further authorizes any person or enumerated health care provider to charge end insert begin insert the person whose written authorization required the availability of the records for the reasonable costs incurred in making the patient records available end insert begin insert , as specified. end insert

This bill would require begin delete the medical end delete begin insert a health care end insert provider begin delete or employer, or an agent thereof, end delete begin insert as defined, end insert to provide an electronic copy of a medical record, when an electronic a copy is requested, if the medical record exists in digital or electronic format and the medical record can be delivered electronically. begin insert The bill would extend the period following presentation of the written authorization after which a health care provider that fails to make the records available may be subject to reasonable expenses incurred to enforce these provisions from 5 days to 15 days. The bill would additionally authorize a health care provider that provides electronic copies of medical records to charge the person whose written authorization required the availability of the records for the reasonable costs incurred to provide the electronic copies, as specified. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1158 of the Evidence Code is amended
to read:

1158.  

(a) Before the filing of any action or the appearance of
a defendant in an action, if an attorney at law or his or her
representative presents a written authorization therefor signed by
an adult patient, by the guardian or conservator of his or her person
or estate, or, in the case of a minor, by a parent or guardian of the
minor, or by the personal representative or an heir of a deceased
patient, or a copy thereof, a begin delete physician and surgeon, dentist,
registered nurse, dispensing optician, registered physical therapist,
podiatrist, licensed psychologist, osteopathic physician and
surgeon, chiropractor, clinical laboratory bioanalyst, clinical
laboratory technologist, or pharmacist or pharmacy, duly licensed
as such under the laws of the state, or a licensed hospital, end delete begin insert health
care provider, as defined in Section 1375.7 of the Health and Safety
Code, end insert shall make all of the patient’s records under that person’s
or entity’s custody or control available for inspection and copying
by the attorney at law or his or her representative, promptly upon
the presentation of the written authorization.

(b) Copying of medical records begin insert pursuant to this section end insert shall
not be performed by begin delete any medical end delete begin insert the health care end insert provider or begin insert the
health care provider’s end insert employer begin delete described in subdivision (a) end delete , or
by an agent thereof, begin delete when end delete begin insert if end insert the requesting attorney has employed
a professional photocopier or anyone identified in Section 22451
of the Business and Professions Code as his or her representative
to obtain or review the records on his or her behalf. The
presentation of the authorization by the agent on behalf of the
attorney shall be sufficient proof that the agent is the attorney’s
representative.

(c) Failure to make the records available during business hours,
within begin delete five end delete begin insert 15 end insert days after the presentation of the written
authorization, may subject the begin delete person or entity end delete begin insert health care provider end insert
having custody or control of the records to liability for all
reasonable expenses, including attorney’s fees, incurred in any
proceeding to enforce this section.

begin insert

(d) If an electronic copy of a medical record is requested
pursuant to this section, the health care provider shall provide an
electronic copy of the requested medical record if the medical
record exists in a digital or electronic format that can be delivered
electronically.

end insert begin delete

(d)

end delete

begin insert (e) end insert  (1) All reasonable costs incurred by begin delete any person or entity
described in subdivision (a) end delete begin insert the health care provider end insert in making
patient records available pursuant to this section may be charged
against the person whose written authorization required the
availability of the records.

(2) “Reasonable cost,” as used in this section, shall include, but
not be limited to, the following specific costs: begin delete ten end delete

begin insert (A) end insert begin insert   end insert begin insert For paper copies of medical records requested pursuant to
this section, all of the following apply: end insert begin delete end delete

begin insert (i) end insert begin insert   end insert begin insert Ten end insert cents ($0.10) per page for standard reproduction of
documents of a size 81⁄2 by 14 inches or begin delete less; end delete begin insert less. end insert begin delete twenty end delete

begin insert (ii) end insert begin insert   end insert begin insert Twenty end insert cents ($0.20) per page for copying of documents
from microfilm; actual costs for the reproduction of oversize
documents or the reproduction of documents requiring special
processing which are made in response to an begin delete authorization; end delete
begin insert authorization. end insert begin delete reasonable end delete

begin insert (iii) end insert begin insert   end insert begin insert Reasonable end insert clerical costs incurred in locating and making
the records available to be billed at the maximum rate of sixteen
dollars ($16) per hour per person, computed on the basis of four
dollars ($4) per quarter hour or fraction begin delete thereof; end delete begin insert thereof. end insert begin delete actual end delete

begin insert (iv) end insert begin insert   end insert begin insert Actual end insert postage begin delete charges; end delete begin insert charges. end insert begin delete and end delete

begin insert (v) end insert begin insert   end insert begin insert The end insert actual begin delete costs, end delete begin insert cost, end insert if any, charged to the witness by a
third begin delete person end delete begin insert party end insert for the retrieval and return of records held by
that third begin delete person. end delete begin insert party. end insert

begin insert

(B) For electronic copies of medical records requested pursuant
to subdivision (d) that are provided by the health care provider in
a digital or other electronic medium including, but not limited to,
e-mail, both of the following apply:

end insert begin insert

(i) [X] cents ($0.X) per page.

end insert begin insert

(ii) A retrieval or processing fee of [XX] dollars ($XX).

end insert begin delete

(e)

end delete

begin insert (f) end insert  If the records are delivered to the attorney or the attorney’s
representative for inspection or photocopying at the record
custodian’s place of business, the only fee for complying with the
authorization shall not exceed fifteen dollars ($15), plus actual
costs, if any, charged to the record custodian by a third begin delete person end delete
begin insert party end insert for retrieval and return of records held offsite by the third
begin delete person. end delete begin insert party. end insert

begin delete

(f) If an electronic copy of a medical record is requested, the
medical provider or employer described in subdivision (a), or an
agent thereof, shall provide an electronic copy of the requested
medical record if the medical record exists in a digital or electronic
format that can be delivered electronically.

end delete