Q: In October 2007 I contracted HA-MRSA during which was to be routine back surgery. I exhibited signs, that if the nurses had followed up, I would have not been discharged and would have avoided me 2 surgeries an additional hospital stay and continuation of home IV therapy. It is hard to find an attorney to handle this case as they released me too early to identify the infection.
I have been advised to contact the Risk Manager at the hospital and discuss with them under the California Information Action, to obtain records of others that have contracted this infection at the hospital just prior and after I was admitted and discharged.
Are my rights enforceable under the California Information Act, California Public Records Act, Patient Access to Medical Records law or the Federal Freedom of Information Act?
A: Your first step is to determine if you have a right of access to the information you are seeking under general open records laws. The Freedom of Information Act (“FOIA”) applies to federal agencies, and unless the hospital in question is a federal entity, that law would likely not apply. The state counterpart to FOIA is the California Public Records Act (“PRA”). However, that law only applies to records in the possession of a state or local agency, as those terms are defined by the PRA. Accordingly, you would need to determine whether the hospital from which you would be seeking the records is a state or local agency for the purpose of the PRA.
The terms “state agency” and “local agency” are defined at Government Code section 6252. Thee full text of the PRA can be found at the following link: http://www.cfac.org/Law/CPRA/Text/cpra_text.html).
As you review section 6254, note that the term “local agency” also includes any entities that qualify as “legislative bodies” under subdivisions (c) and (d) of section 54952 of the Government Code. Those sections define a “legislative body” as follows:
“(c) (1) A board, commission, committee, or other multimember body that governs a private corporation, limited liability company, or other entity that either:
(A) Is created by the elected legislative body in order to exercise authority that may lawfully be delegated by the elected governing body to a private corporation, limited liability company, or other entity.
(B) Receives funds from a local agency and the membership of whose governing body includes a member of the legislative body of the local agency appointed to that governing body as a full voting member by the legislative body of the local agency.”
(d) The lessee of any hospital the whole or part of which is first leased pursuant to subdivision (p) of Section 32121 of the Health and Safety Code after January 1, 1994, where the lessee exercises any material authority of a legislative body of a local agency delegated to it by that legislative body whether the lessee is organized and operated by the local agency or by a delegated authority.
If the hospital is a state or local agency for the purposes of the PRA, the law provides that records created, owned or maintained by that entity are public records that may be examined or copied upon request, unless one of the Act’s many exemptions to disclosure apply. To the extent you are seeking medical information about other patients, the hospital is almost certain to assert the exemption found at Govt. Code section 6254(c), which exempts
“[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”
Release of medical records is also regulated by HIPAA and other laws. With this in mind, your request should specify that you are not seeking patient-identifying information, and that any such information shown on the records you are seeking may be redacted before it is provided to you. A sample Public Records Act request can be found on CFAC’s web site. If your request is in writing and the entity decides it is going to withhold the requested records, the entity is required to respond to you within 10 days, citing the exemptions upon which it is relying.
If the hospital is not a state or local agency, the PRA would not apply. It is possible that you might have a right to obtain records of other patients under some other state or federal law, such as those you specified in your email, but I am not familiar with those laws, and an analysis of such laws is beyond the scope of what we can provide as part of this free hotline. To the extent you filed a civil lawsuit, you would probably be able to obtain the information you are seeking through the discovery process. Here is a link to the website for the State of California where you can find information about attorney referrals.