Social Media is abuzz with posts from parents who have received a certified letter from the Medical Board of California demanding that they sign an enclosed release which authorizes their child’s physician to release his/her medical records to the Board.
What should you do?
Actually, for a variety of reasons, I am not going to tell you what to do or give you legal advice of any kind. What I am going to do is lay out a decision tree providing you with some information which may help you decide.
FYI: As I’ve explained in a recent post, California may be the only state in which its medical board cannot automatically obtain patient medical records from a physician. Here is that post: http://rickjaffeesq.com/2019/07/05/can-the-cali-medical-board-obtain-your-childs-medical-records-without-your-consent/
That means the California Medical Board has to first ask the patient’s permission to obtain the records. Most of the time, that isn’t an issue, since many Board investigations are started by a patient complaint, so the patient is obviously willing to have the Board review his/her medical records. But if someone other than the patient complains, well then it becomes an issue. In vaccine exemption Board investigations, the complaints almost never come from the patients, but rather from school nurses or the child’s PCP, most often an HMO.
So, in these cases, the Board is obligated ask the family for a waiver/permission to obtain your child’s medical records. The letter mentions subpoenas and legal process. These letters are meant to intimate you but are vague enough so as not to make a direct threat against you. All with an eye to maximize the chance that the family will comply and send back the release/waiver.
Here is how you should analyze the letter.
You have two options:
Option 1: sign the release and send it back to the Board.
The Board will send the release to the physician, and the physician will be obligated to send the medical records to the Board. The records will be reviewed by a medical consultant. If the care involves, let’s say, a medical vaccine exemption beyond the CDC contraindications, (or to make it even more simple, if it is a permanent exemption from all childhood vaccines), the medical consultant will conclude that the exemption was not within the standard of care. Eventually, the doctor will be charged with a Board violation.
Option 2: Do nothing.
If you do nothing, for sure in a few weeks to a month or two, you will receive the same letter again. If you continue to do nothing, then either 1. That will be the end of it, or 2. It’s possible, that you might get a visit from a board investigator who will you ask you in person to sign the form. (I suppose another option would be to write back and say you don’t agree to release the records, which may or may not avoid an Board investigator’s visit)
You have two choices:
Choice 1: Sign the form
Choice 2: Tell the investigator that you’re not going to sign and politely ask him to leave. If you do, he/she will indicate in the most authoritative/mildly intimidating tone that he/she is going to have to subpoena the records from your child’s physician.
You have two possible responses:
Response 1: Sign the release
Response 2: Tell him you’re still not going to sign, and again politely tell him to leave.
What happens to you if you chose Response 2?
NOTHING. You do not have the medical records he/she seeks, so there is nothing the Board can do to you or your family.
In short, you are NOT legally obligated to sign the waiver to release your child’s medical records, and there will be no consequences to you if you refuse to do so.
What happens to my child’s physician if I do not sign the waiver?
The board will serve your child’s physician with a subpoena for the records. The physician may or may not comply. If you do not want your physician to comply, after you receive the letter from the Board, inform your doctor about the request and tell him that you do not agree to have your child’s medical records released to the Board.
At some point, the Board will go to court to compel the physician to turn over the records. Candidly, there is a very good chance that the court will side with the Board.
But that’s not your problem and is not necessarily directly relevant to your options and decision as to what you should do if you receive that Board letter.
So, there you have it. Hope it helps.
Rick Jaffe, Esq.