Are You Paying Too Much for Subpoenaed Medical Records?

Any lawyer who routinely purchases medical records as part of their practice is familiar with the ubiquitous $0.75 charge per page.  However, does Public Health Law Section 17 and 18’s provision, requiring medical records be furnished to patients at a maximum of $0.75 per page, apply in the context of subpoenaed medical records?  A reading of CPLR §8001 suggests the answer is no.

CPLR §8001(c) governs the permissible charge for a party who receives a subpoena for a “transcript of records.”  Subsection (c) reads, “Wherever the preparation of a transcript of records is required in order to comply with a subpoena, the person subpoenaed shall receive an additional fee of ten cents per folio upon demand.”  A plain language reading of the section suggests that §8001(c) governs subpoenas for any type of records, mandating payment of $0.10 per page (rather than $0.75).  Unfortunately, there is virtually no case law interpreting §8001’s meaning behind the term, “transcripts of records” (and whether “transcripts” include medical records).

However, legislative records provide good reason to believe the legislature’s intention was for CPLR §8001(c) to apply to subpoenaed medical records.  A pair of proposed bills sponsored by New York State Senator Kemp Hannon attempted to carve out an exception to CPLR §8001(c), specifically for medical records.  Both proposed bills were unsuccessful.   Proposed bill number S05076A, submitted on April 21, 1999, provided for an exception to subsection (c) that would apply only to reproduction of “patient information or clinical records”, in which case “section 18 of the Public Health Law” would apply.  A legislative report on Senator Hannon’s proposed bill, prepared by the Committee on Civil Practice Law and Rules, noted the bill was disapproved.  The report reads “The amendment would leave the ten cents per folio rate for everything but medical records.  There is no evidence that it costs more to reproduce a medical record than other kinds of records.  If, as is probably true, ten cents per folio is too low, it would make more sense to raise the rate for all records.”  Senator Hannon again submitted the proposed bill, now under proposed bill number S2949, on February 27, 2001.  However, Senator Hannon’s proposed language, amending CPLR §8001(c), was never added.

Despite no binding Appellate or Court of Appeals decisions declaring that CPLR §8001(c) applies to the subpoena of medical records, the great bulk of evidence suggests that it does.  As such, if you are paying $0.75 per page for subpoenaed medical records, you are simply paying too much.