Medical Records Denied

[CNTD]

Due to my ex-girlfriend's refusal to disclose pertient information regarding our shared child's health, I have to attain medical records from each facility my daughter has been assessed or seen on a patient basis at. I have requested (using SPARC's letter) it from her primary care, her allergist, her ENT specialist, her dentist, and the hospital from the town where my daughter resides.

I recieved medical records from her primary care pediatrician, and her allergist, the ENT and dentist I just sent the request today. I am assuming they will cooperate, only time will tell.

The hospital is refusing to disclose my daughter's medical records. In their response (June 28) they stated "I have spoken with our legal department and they have informed me that legally we cannot provide you with the material in which you have requested without the consent of her mother SInce your daughter is in the custody of her mother, we would need her consent in order to release her records to you."

According to NM Statutes that state "New Mexico
40-4-9.1. Joint custody; standards for determination; parenting plan.

H. Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including medical, dental and school records, shall not be denied to a parent because that parent is not the child's physical custodial parent or because that parent is not a joint custodial parent.

I responded to their letter quoting that statute, and have not recieved correspondence since. My assumption is that my ex-girlfriend has a friend/aquaintence that works there, since the town she lives in is quite small.

(1) What legal action can be taken to force the hospital to release the medical records that I am entitled to?

(2) Can the facility be fined for refusing to comply with the statues of NM?

[Sherry1]

did you copy the part of your custody agreement that says you have joint custody and send along with the SPARC letter?  DH got the same run around from an Arizona hospital.  But we sent off the letter, copied the custody agreement that says he has joint legal custody and we also copied the pages that said that bot parties are subject medical information, we got back the records with an apology from the medical staff.  Also, we faxed a copy of the letter along with the custody agreement to the CFO of the hospital.

[CNTD]

Yes, we sure did include a copy of the court order awarding joing custody (though not relevant, since the statute states it doesn't matter), and the current court order.  

I'd hoped that they would see the mistake, and send the records, however that doesn't seem to be the case.

Thanks.

[socrateaser]

>(1) What legal action can be taken to force the hospital to
>release the medical records that I am entitled to?

You can either file a motion to clarify with the court, asking that the court modify the orders to expressly declare your right to the records. First, I would send a request to the other parent to sign a blanket consent to give you access to all of the child's records. Then if she refuses, you can move for the clarification order and ask for your attorney fees from the other parent on grounds that her failure to cooperate in good faith has created unnecessary litigation.

>(2) Can the facility be fined for refusing to comply with the
>statues of NM?

Not unless you sue the facility in civil court on grounds of violating the statute. Note, that the statute doesn't directly require the facility to produce the records -- it only requires that your lack of custodial rights may not be the sole basis for the denial. Thus, there may be some other legal reason why they are denying the records, which would legitimize their action.

Assuming that they are violating your rights, you would sue for declaratory relief and ask for them to pay your attorney fees and any out of pocket costs, as a sanction for violating the statute.

Easier to get a clarification order, though.

[CNTD]

What would I need to include in the order, should I request a hearing as well? We are pro-se, so whatever has to be done, has to be done by me. I can't find any Motion to Clarify examples online.

I would request that the mother sign a consent form, however none has been provided by the facility, could I just type one up?

[socrateaser]

>What would I need to include in the order, should I request a
>hearing as well? We are pro-se, so whatever has to be done,
>has to be done by me. I can't find any Motion to Clarify
>examples online.

I don't know NM civil procedure. Some states have "form" pleadings, usually available online. Otherwise the court clerk should have them as well as the county law library (at the courthouse or thereabouts). Other states permit plain paper pleadings (the traditional method). If NM is a plain paper jurisdiction, then I will need to see at least one motion pleading on any subject before I could possibly tell you how to format the order. But, I can give you some text, if you can tell me whether you're in a plain paper or form pleading jurisdiction.

>
>I would request that the mother sign a consent form, however
>none has been provided by the facility, could I just type one
>up?

Yes. This is not some complex document. It's just a letter written by the other parent granting authority to you to access any records of the child. Something like:

??/??/??

Name
Address
City, State Zip
Contact Phone

Re: Case reference (e.g., In re Matter of Smith, Blahblah County, Case No. ????)

To whom it may concern:

Please be advised that I hereby grant OTHERPARENT unlimited and ongoing access to all healthcare records or other information, as well as to consult with any and all healthcare personnel, concerning matters involving our minor child, CHILDSFULLNAME, Social Security Number ???-??-????.

This consent is intended to be irrevocable, except by subsequent court order.

Sincerely,

PARENTSNAME

Acknowledged before me, this ____ day of ____, 2006

By: ____________
Notary Public
My commission expires: _______

[CNTD]

I can scan a motion, and email it to you. Let me see if I can paste the most recent motion (to compel).

SECOND JUDICIAL DISTRICT COURT
STATE OF NEW MEXICO
COUNTY OF BERNALILLO

,
   Petitioner,

v.                     No.

,
   Respondent.

PETITIONER'S FIRST MOTION TO COMPEL
DISCOVERY FROM RESPONDENT

   COMES NOW Petitioner, pro-se and states:
   1.   This Court has jurisdiction over the subject matter and the parties.

   2.   Petitioner propounded his first request for discover by mailing Petitioner's First Interrogatories & Request for Production of Documents to Respondent's counsel of record, at her address of record June 6, 2006, as evidenced by the Certificate of Mailing filed June 6, 2006.

   3.   Respondent answers were due to Petitioner on July 14, 2006, but nothing was provided by Respondent or her counsel to Petitioner by that date.

   4.    Respondent has wholly failed to respond and has provided no responses to Petitioner's First Interrogatories & Request for Production of Documents to Respondent.

   5.   Respondent has not sought an extension of time in which to respond.
   6.   The questions in the tendered discover and the answers thereto are material and relevant to the remaining issues in this case.

   7.    Respondent should be ordered to immediately provide the requested information and discovery sanctions should she fail to comply, including but not limited to imputing income to her at a level against her interest.

   8.   Concurrence was sought from Respondent, with no response.


   WHEREFORE, Petitioner prays that the Court:

   A.   Order that Respondent produce all documents in response to the tendered discovery;

   B.   Order any other discover sanctions against Respondent deemed appropriate in the circumstances;

   C.    Award all other relief to Petitioner allowed by law.


                     Respectfully submitted;


                     ______________________________
      

Let me know if you want it in word format, or in adobe if this doesn't work. :)

[socrateaser]

OK, I understand. Your motion to compel is actually written in the form of a petition rather than a motion, but the bottom line is that it's plain paper, so, you just use all the same caption info as you used before except:

PETITIONER'S MOTION FOR AN ORDER CLARIFYING ACCESS RIGHTS TO MINOR CHILD'S HEALTH AND EDUCATION INFORMATION

Comes now, Petitioner, YOURNAME, pro se, and hereby moves for an order clarifying the current custody and parenting orders of the parties so as to grant both parties unrestricted authority to access all healthcare and education related records of the parties minor child, CHILDSNAME, as well to consult with healthcare or education providers as may be necessary to advance the minor child's best interests.

In support of the above-requested motion, I, YOURNAME, hereby declare as follows:

1. That I am Petitioner in the above-entitled action, and if called up I can and will testify to matters set forth herein of my own personal knowledge.

2. On ??/??/??, (state the various facts and circumstances that led you to request this order.

3. etc.

4. For all of the foregoing reasons, I hereby request that the court order that: The parties are hereby granted unrestricted joint and several authority to access all healthcare and education related records of their minor child, CHILDSNAME, as well as to conult with any and/or all heathcare and/or education providers as may be necessary to advance the minor child's best interests.

5. I declare under penalty of perjury, under the laws of the State of New Mexico, that the foregoing is true and correct.

Dated: ________


By: _______________
YOURNAME
Petitioner, Pro Se

----------------------------(PAGE BREAK)

FINDINGS AND ORDER

This matter, having come before the court upon motion of Petitioner for an order clarifying the rights and resposibilities of the parties concerning access to their minor child's healthcare and educational records, as well as access to healthcare and education provider consultation, and the court, having reviewed the pleadings and evidence of the parties, and after having been fully advised;

NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

Check one:

______ The parties are hereby granted unrestricted joint and several authority to access all healthcare and education related records of their minor child, CHILDSNAME, as well as authority to consult with any and/or all heathcare and/or education providers as may be necessary to advance the minor child's best interests.

______ Motion Denied.


Dated, this _____  day of ______, 2006


By: ________________
District Court Judge

[CNTD]

Awesome! :D

Thanks Soc!