2023 Code of Virginia › Title 8.01 - Civil Remedies and Procedure › Chapter 14 - Evidence › § 8.01-413. Certain copies of health care provider's health records of patient admissible; right of patient, his attorney and authorized insurer to copies of such health records; subpoena; damages, costs and attorney fees

A. In any case where the health records of a health care provider for 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, photostatted copy, or microphotograph or printout or other hard copy generated from computerized or other electronic storage, microfilm, or other photographic, mechanical, electronic, imaging, or chemical storage process thereof shall be admissible as evidence in any court of the 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 health records.
Any health care provider whose health records relating to any such patient are subpoenaed for production as provided by law may comply with the subpoena by a timely mailing to the clerk issuing the subpoena or in whose court the action is pending properly authenticated copies, photographs or microphotographs in lieu of the originals. The court whose clerk issued the subpoena or, in the case of an attorney-issued subpoena, in which the action is pending, may, after notice to such health care provider, enter an order requiring production of the originals, if available, of any stored health records whose copies, photographs or microphotographs are not sufficiently legible.
Except as provided in subsection G, the party requesting the subpoena duces tecum or on whose behalf an attorney-issued subpoena duces tecum was issued shall be liable for the reasonable charges of the health care provider for the service of maintaining, retrieving, reviewing, preparing, copying, and mailing the items produced pursuant to subsections B2, B3, B4, and B6, as applicable.
B. Copies of health records, including an audit trail of any additions, deletions, or revisions to the health record, if specifically requested, shall be furnished within 30 days of receipt of such request to the patient, his attorney, his executor or administrator, or an authorized insurer upon such patient's, attorney's, executor's, administrator's, or authorized insurer's written request, which request shall comply with the requirements of subsection E of § 32.1-127.1:03. If a health care provider is unable to provide such health records within 30 days of receipt of such request, such provider shall notify the requester of such health records in writing of the reason for the delay and shall have no more than 30 days after the date of such written notice to comply with such request.
However, copies of a patient's health records shall not be furnished to such patient when the patient's treating physician, clinical psychologist, clinical social worker, or licensed professional counselor in the exercise of professional judgment, has made a part of the patient's health records a written statement that in his opinion the furnishing to or review by the patient of such health records would be reasonably likely to endanger the life or physical safety of the patient or another person, or that such health records make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person. In any such case, if requested by the patient or his attorney or authorized insurer, such health records shall be furnished within 30 days of the date of such request to the patient's attorney or authorized insurer, rather than to the patient.
If the health records are not provided to the patient in accordance with this section, then, if requested by the patient, the health care provider denying the request shall comply with the patient's request to either (i) provide a copy of the health records to a physician, clinical psychologist, clinical social worker, or licensed professional counselor of the patient's choice whose licensure, training, and experience, relative to the patient's condition, are at least equivalent to that of the treating physician, clinical psychologist, clinical social worker, or licensed professional counselor upon whose opinion the denial is based, who shall, at the patient's expense, make a judgment as to whether to make the health records available to the patient or (ii) designate a physician, clinical psychologist, clinical social worker, or licensed professional counselor whose licensure, training, and experience, relative to the patient's condition, are at least equivalent to that of the treating physician, clinical psychologist, clinical social worker, or licensed professional counselor upon whose opinion the denial is based and who did not participate in the original decision to deny the patient's request for his health records, who shall, at the expense of the provider denying access to the patient, review the health records and make a judgment as to whether to make the health records available to the patient. In either such event, the health care provider denying the request shall comply with the judgment of the reviewing physician, clinical psychologist, clinical social worker, or licensed professional counselor.
Except as provided in subsection G, a reasonable charge may be made by the health care provider maintaining the health records for the cost of the services relating to the maintenance, retrieval, review, and preparation of the copies of the health records, pursuant to subsections B2, B3, B4, and B6, as applicable. Any health care provider receiving such a request from a patient's attorney or authorized insurer shall require a writing signed by the patient confirming the attorney's or authorized insurer's authority to make the request, which shall comply with the requirements of subsection G of § 32.1-127.1:03, and shall accept a photocopy, facsimile, or other copy of the original signed by the patient as if it were an original.
B1. A health care provider shall produce the health records in either paper, hard copy, or electronic format, as requested by the requester. If the health care provider does not maintain the items being requested in an electronic format and does not have the capability to produce such items in an electronic format, such items shall be produced in paper or other hard copy format.
B2. When the health records requested pursuant to subsection B1 are produced in paper or hard copy format from records maintained in (i) paper or other hard copy format or (ii) electronic storage, a health care provider may charge the requester a reasonable fee not to exceed $0.50 per page for up to 50 pages and $0.25 per page thereafter for such copies, $1 per page for hard copies from microfilm or other micrographic process, and a fee for search and handling not to exceed $20, plus all postage and shipping costs.
B3. When the health records requested pursuant to subsection B1 are produced in electronic format from health records maintained in electronic storage, a health care provider may charge the requester a reasonable fee not to exceed $0.37 per page for up to 50 pages and $0.18 per page thereafter for such copies and a fee for search and handling not to exceed $20, plus all postage and shipping costs. Except as provided in subsection B4, the total amount charged to the requester for health records produced in electronic format pursuant to this subsection, including any postage and shipping costs and any search and handling fee, shall not exceed $160 for any request made on or after July 1, 2021, plus the reasonable costs to produce an audit trail of the health records, if specifically requested.
B4. When any portion of health records requested to be produced in electronic format is stored in paper or other hard copy format at the time of the request and not otherwise maintained in electronic storage, a health care provider may charge a fee pursuant to subsection B2 for the production of such portion, and such production of such portion is not subject to any limitations set forth in subsection B3, whether such portion is produced in paper or other hard copy format or converted to electronic format as requested by the requester. Any other portion otherwise maintained in electronic storage shall be produced electronically. The total search and handling fee shall not exceed $20 for any production made pursuant to this subsection where the production contains both health records in electronic format and health records in paper or other hard copy format.
B5. Upon request, a patient's account balance or itemized listing of charges maintained by a health care provider shall be supplied at no cost up to three times every 12 months to either the patient or the patient's attorney.
B6. When the record requested is an X-ray series or study or other imaging study and is requested to be produced electronically, a health care provider may charge the requester a reasonable fee, which shall not exceed $25 per X-ray series or study or other imaging study, and a fee for search and handling, which shall not exceed $10, plus all postage and shipping costs. When an X-ray series or study or other imaging study is requested to be produced in hard copy format, or when a health care provider does not maintain such X-ray series or study or other imaging study being requested in an electronic format or does not have the capability to produce such X-ray series or study or other imaging study in an electronic format, a health care provider may charge the requester a reasonable fee, which may include a fee for search and handling not to exceed $10 and the actual cost of supplies for and labor of copying the requested X-ray series or study or other imaging study, plus all postage and shipping costs.
B7. Upon request by the patient, or his attorney, of health records as to the cost to produce such health records, a health care provider shall inform the patient, or his attorney, of the most cost-effective method to produce such a request pursuant to subsection B2, B3, B4, or B6, as applicable.
B8. Production of health records to the patient, or his attorney, requested pursuant to this section shall not be withheld or delayed solely on the grounds of nonpayment for such health records.
C. Upon the failure of any health care provider to comply with any written request made in accordance with subsection B within the period of time specified in that subsection and within the manner specified in subsections E and F of § 32.1-127.1:03, the patient, his attorney, his executor or administrator, or authorized insurer may cause a subpoena duces tecum to be issued. The subpoena may be issued (i) upon filing a request therefor with the clerk of the circuit court wherein any eventual suit would be required to be filed, and upon payment of the fees required by subdivision A 18 of § 17.1-275, and fees for service or (ii) by the patient's attorney in a pending civil case in accordance with § 8.01-407 without payment of the fees established in subdivision A 23 of § 17.1-275.
A sheriff shall not be required to serve an attorney-issued subpoena that is not issued at least five business days prior to the date production of the record is desired.
No subpoena duces tecum for health records shall set a return date by which the health care provider must comply with such subpoena earlier than 15 days from the date of the subpoena, except by order of a court or administrative agency for good cause shown. When a court or administrative agency orders that health records be disclosed pursuant to a subpoena duces tecum earlier than 15 days from the date of the subpoena, a copy of such order shall accompany such subpoena.
As to a subpoena duces tecum issued with at least a 15-day return date, if no motion to quash is filed within 15 days of the issuance of the subpoena, the party requesting the subpoena duces tecum or the party on whose behalf the subpoena was issued shall certify to the subpoenaed health care provider that (a) the time for filing a motion to quash has elapsed and (b) no such motion was filed. Upon receipt of such certification, the subpoenaed health care provider shall comply with the subpoena duces tecum by returning the specified health records by either (1) the return date on the subpoena or (2) five days after receipt of such certification, whichever is later.
The subpoena shall direct the health care provider to produce and furnish copies of the health records to the requester or clerk, who shall then make the same available to the patient, his attorney, or his authorized insurer.
If the court finds that a health care provider willfully refused to comply with a written request made in accordance with subsection B, either (A) by failing over the previous six-month period to respond to a second or subsequent written request, properly submitted to the health care provider in writing with complete required information, without good cause or (B) by imposing a charge in excess of the reasonable expense of making the copies and processing the request for health records, the court may award damages for all expenses incurred by the patient or authorized insurer to obtain such copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.
If the court further finds that such subpoenaed health records, subpoenaed pursuant to this subsection, or requested health records, requested pursuant to subsection B, are not produced for a reason other than compliance with § 32.1-127.1:03 or an inability to retrieve or access such health records, as communicated in writing to the subpoenaing party or requester within the time period required by subsection B, such subpoenaing party or requester shall be entitled to a rebuttable presumption that expenses and attorney fees related to the failure to produce such health records shall be awarded by the court.
D. The provisions of this section shall apply to any health care provider whose office is located within or outside the Commonwealth if the records pertain to any patient who is a party to a cause of action in any court in the Commonwealth, and shall apply only to requests made by the patient, his attorney, his executor or administrator, or any authorized insurer, in anticipation of litigation or in the course of litigation.
E. As used in this section, "health care provider" has the same meaning as provided in § 32.1-127.1:03 and includes an independent medical copy retrieval service contracted to provide the service of retrieving, reviewing, and preparing such copies for distribution. As used in this section, "health record" has the same meaning as provided in § 32.1-127.1:03.
F. Notwithstanding the authorization to admit as evidence health records in the form of microphotographs, prescription dispensing records maintained in or on behalf of any pharmacy registered or permitted in the Commonwealth shall only be stored in compliance with §§ 54.1-3410, 54.1-3411 and 54.1-3412.
G. The provisions of this section governing fees that may be charged by a health care provider whose records are subpoenaed or requested pursuant to this section shall not apply in the case of any request by a patient for a copy of his own health records, which shall be governed by subsection J of § 32.1-127.1:03. This subsection shall not be construed to affect other provisions of state or federal statute, regulation or any case decision relating to charges by health care providers for copies of health records requested by any person other than a patient when requesting his own health records pursuant to subsection J of § 32.1-127.1:03.
Code 1950, § 8-277.1; 1954, c. 329; 1976, c. 50; 1977, cc. 208, 617; 1981, c. 457; 1982, c. 378; 1990, cc. 99, 320; 1992, c. 696; 1994, cc. 390, 572; 1995, c. 586; 1997, c. 682; 1998, c. 470; 2000, cc. 813, 923; 2001, c. 567; 2002, cc. 463, 654; 2004, cc. 65, 335, 742, 1014; 2005, cc. 642, 697; 2009, c. 270; 2017, c. 457; 2020, c. 945; 2022, cc. 509, 534.