Q: Lost records?
I just found out that my records only go back to Nov 2019 from the patient portal. My botched surgery took place in Oct 2019. This hospital knows they did wrong. My question is, can I request my surgery records from that hospital through the patient portal because I can no longer speak due to my condition or are they forever gone because the hospital wanted those records gone?
A: I'm sorry about your ordeal with the surgery. Yes, you can request them through the portal. It's hard to say if the hospital "wanted those records gone," as you put it. That could invite an allegation of spoliation of evidence (destruction of evidence). A reputable health care facility could be reluctant to risk that to possibly deprive you of records, which for all they know, you may already have. If you get nowhere, why don't you try the insurance carrier you had coverage with at the time of surgery. Such a major procedure would have likely gone through pre-authorization, review, and partial denial in post-surgery - which would have left a digital trail in the records of the health insurance carrier's claims department. Don't delay much further. It looks like five-plus year have already elapsed. I hope your health condition improves. If this is in connection with a pending claim, is your matter already in suit? It looks like the timeline is beyond the med mal statute of limitations in New York State (barring the application of legal doctrines that extend time). Good luck
Jonathan R. Ratchik agrees with this answer
A: Yes, you can still request your records from the hospital. You'll need to submit a HIPAA authorization, https://www.nycourts.gov/forms/hipaa_fillable.pdf The hospital might charge you a fee to copy your chart ($0.75 per page). As my colleague correctly advised, the statute of limitations on malpractice cases in New York is only 2.5 years from the date of malpractice which means that if you were contemplating bringing a lawsuit, your time in which to do so likely expired several years ago.
Tim Akpinar agrees with this answer
A:
I'm sorry to hear about the difficulties you are facing with your medical records and your health. Accessing medical records is an important step in addressing concerns related to a surgery, particularly if you believe medical negligence occurred.
Under New York Public Health Law § 18, patients have the right to access their medical records, including surgical records, from hospitals and healthcare providers. Even if certain records do not appear in a patient portal, this does not mean they have been permanently deleted or are no longer accessible. Hospitals are required to maintain medical records for a certain period, and you have the right to formally request them.
In New York, hospitals must retain inpatient records for at least six years from the date of discharge. If the patient was a minor at the time of treatment, the records must be kept until the patient turns 21 or for six years, whichever is longer. Since your surgery took place in October 2019, the hospital is still legally required to maintain those records, and you should be able to request them.
Since you are unable to speak due to your medical condition, you can still request your records through written communication. You may send a written request to the hospital’s medical records department or Health Information Management (HIM) office. Many hospitals provide forms for record requests on their websites. If you are unable to complete the request yourself, you can authorize a trusted family member, caregiver, or legal representative to obtain the records on your behalf through a HIPAA authorization form.
If the hospital refuses to provide the records or claims they no longer exist, you may take additional steps:
1. Contact the New York State Department of Health – You can file a complaint regarding missing or inaccessible medical records.
2. Consult an Attorney – If you suspect that records were intentionally destroyed or altered to conceal medical malpractice, an attorney can assist in obtaining the records through legal channels, such as a court order or subpoena.
3. Request Records from Your Insurance Company – If you used insurance for your surgery, your insurer may have copies of some relevant medical documents, including billing codes and procedure details.
Your right to access medical records is protected by both New York law and federal regulations under HIPAA (Health Insurance Portability and Accountability Act). If the hospital is not cooperating, legal intervention may be necessary.
Disclaimer: This response is for general informational purposes only and does not constitute legal advice. For personalized guidance, please consult a qualified attorney licensed in New York.
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