Have you suffered damage during treatment? The first thing you need to do is get medical records from a medical facility in which you were treated, which will allow you to analyze the course of your treatment, assess its correctness, and determine issues such as, in particular, whether you have given proper consent to the treatment.
Before you file a possible lawsuit to the Polish court, you must try to resolve the dispute out of court. For this purpose, you should call the hospital, other medical facility or the doctor and their insurers for payment, provided that you have received information about the insurer’s details. The insurer will always ask you for medical records from your treatment. It is necessary for the insurer to analyze the case and the validity of your claims under the so-called ‘settlement proceedings’.
Who can make the request?
Medical records must be made available to the following entities upon request:
- to the patient;
- the patient’s legal representative;
- a person authorized by the patient.
Therefore, the patient’s medical records are made available to him upon his request. The child’s medical records should be made available to his or her parents or guardian, and in the case of a partially incapacitated person – to the curator, and in the case of a completely incapacitated person – to his or her guardian.
What happens after patient’s death?
When referring to the provision of medical records to a person authorized by the patient, it should be emphasized that this authorization remains legally valid even after the patient’s death.
The issue of sharing medical records after the patient’s death has been regulated separately. In such a situation, access to documentation should be provided upon request:
- a person authorized by the patient during his lifetime;
- the person who was the patient’s legal representative at the time of the patient’s death;
- a close person, unless another close person objects to the disclosure or the patient objected to it during his or her lifetime.
Difficult situations
Unfortunately the law does not regulate all possible situations. For example, a question can be asked: who can request access to the medical records of a patient in a vegetative or comatose state who has not previously authorized anyone to access the records at the medical facility from which we want to obtain them? According to the case law, it is assumed that if such a patient has ever submitted such an authorization, even in another medical facility, it remains in force and may constitute the basis for making medical records from another facility available to the person for whom it was established. In the Online Patient Account provided for patients in Poland (IKP), anyone can authorize any person to access medical records – this is the best protection for the situation described above.
Deadline for the issuance of medical records
At the request of the entitled person, medical documentation should be made available immediately.
So much for the theory. And what does it look like in practice? Unfortunately, it often happens that a patient or other authorized person waits much longer than required by law for access to medical records. How can this be remedied? Unfortunately, there is no quick and effective method. One of our clients waited eight months for his medical records to be made available to him before he sought help from our law firm.
Special solutions
Due to the fact that the right to access medical records is a patient’s right, a person authorized to access medical records may contact the Patient Ombudsman to initiate explanatory proceedings. If the Patient Ombudsman finds a violation of the patient’s right in the above respect, he or she may submit a complaint to the entity providing health services in whose activities he or she found a violation of the patient’s right to access medical records. The entity providing health services is obliged to immediately, but no later than within 30 days, inform the Ombudsman about the actions taken or the position taken. In an ideal world, it should therefore provide medical documentation to the authorized person and inform the Ombudsman about it.
What if the medical facility still doesn’t do it? There is one more legal way available – it is possible to file a complaint to the administrative court about the inaction of a medical facility in providing medical records. The court may oblige the medical facility to provide medical records within a specified period, as well as impose a fine or award the complainant from the medical facility a sum of money specified in the regulations.
Dr. iur. Anna Miśtal-Kluś
Dzień dobry!
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