Widow sues Ciox Health and a NY hospital for failure to release husband's EHR data

According to the plaintiff's lawyer, HealthAlliance Hospital's Broadway campus directed her to the vendor when she asked for electronic copies of his patient records.
By Kat Jercich
10:05 AM

A woman living in Woodstock, New York, has filed suit against HealthAlliance Hospital and the information management vendor Ciox Health for allegedly declining to release her deceased husband's electronic health records in a non-paper format.

The lawyer for the plaintiff, Sherry Russell, said that HealthAlliance Hospital's Broadway campus (formerly known as Kingston Hospital) has repeatedly directed her to Ciox for the records, which in turn allegedly told her she will have to pay 75 cents a page for photocopied paper versions.

"The maximum charge for electronic medical records under federal law is $6.50," said Russell's lawyer, John Fisher, in an interview with Healthcare IT News. "But if they charge for the paper copy of the records, it could be thousands of dollars."  

According to a 2016 guidance from the U.S. Department of Health and Human Services, HIPAA-covered entities and business associates should either charge $6.50 to fulfill a record request or calculate fees based on the labor cost of doing so.

Earlier this year, the U.S. Department of Health and Human Services lifted that cap on fees when it comes to organizations charging third parties, such as law firms, when releasing copies of electronic records. The fee cap for patients, however, remains in place.  

Fisher says that Russell's alleged treatment is a violation of the HITECH Act, which – among other provisions – requires HIPAA-covered entities to provide patients with an electronic copy of their records.   

According to Fisher, after the death of Russell's husband, Charlie, in October 2019, she requested his electronic health records in order to file a separate malpractice lawsuit against the hospital. Without the records, said Fisher, Russell cannot identify the physician involved in her husband's care. Ciox said that it could not comment on pending litigation; the Westchester Medical Health Network, of which HealthAlliance is a part, said it did not comment on ongoing litigation.  

WHY IT MATTERS

According to Fisher, in March 2017, Charlie Russell underwent a chest X-ray as part of a routine procedure. That X-ray showed a mass in his lung, but as Fisher told Healthcare IT News, neither Russell nor his wife were informed of it.  

The next March, Fisher said, Russell went in for another chest X-ray. This time, doctors found a six-centimeter mass in his lung. Further imaging showed cancer in his brain and liver.

Sherry Russell believes her husband's cancer could have been treated sooner, had the mass been identified and communicated about in 2017. She is planning to file a medical malpractice lawsuit. The deadline to sue is September 14, said Fisher, but Russell is relying on the electronic health records for her case.   

Fisher said he has other clients with similar experiences at HealthAlliance concerning their records, and that clients whose cases qualify could join onto Russell's class-action suit filed this past week.  

"We know firsthand that there are others" that have experienced problems obtaining their electronic health records, said Fisher.  

THE LARGER TREND  

The HIPAA Privacy Right Rule of Access guarantees patient access to physical or digital copies of healthcare records – and noncompliant health systems can face hefty fines. In 2019, Bayfront Health St. Petersburg had to pay the HHS Office of Civil Rights $85,000 and promise remediation after failing to give a pregnant woman timely access to her medical records.

Meanwhile, Ciox has been at the center of a number of lawsuits concerning the costs of electronic health records. In 2018, the company sued HHS over the $6.50 flat fee Fisher invoked, saying that it "bears no rational relationship to the actual costs associated with processing such requests."  

HHS, in turn, said that it couldn't actually enforce that flat fee against Ciox, because Ciox is a business associate, not a covered entity.

This lawsuit eventually led to the agency lifting the cap on fees for third-party organizations' requests for records.  

And last year, Ciox Health and the Wisconsin-based Aurora Health paid $35.4 million to settle a class-action lawsuit that accused the companies of overcharging for records requests.

Studies have shown other hospitals not complying with the HHS-recommended $6.50, with one reportedly charging more than $500 for a 200-page record.  

ON THE RECORD  

HealthAlliance, said Fisher, is "stonewalling our client and affecting her ability to bring a lawsuit."

 

Kat Jercich is senior editor of Healthcare IT News.
Twitter: @kjercich
Email: kjercich@himss.org
Healthcare IT News is a HIMSS Media publication.

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