Patients are not entitled to medical records

Patients are not entitled to original patient records

20.12.2011

According to a judgment of the Frankfurt Higher Regional Court, patients are not entitled to the original medical record. Only copies can be made of the file and also an insight into the original is possible. For the copies made, however, the patients have to pay the costs.

According to a judgment of the judges of the Higher Regional Court Hesse in Frankfurt (OLG) patients have no claim to the delivery of the original patient record. If those affected would like to receive a copied version, they must bear the copying costs, as stated in the decision of the OLG Hessen with the file number Az: 8 W 20/11. However, if the patient merely requests the sending of the copies without offering a reimbursement of the costs, then the clinicians do not have to react to it if the claim is § 811 II 1 of the Civil Code (BGB) was not adequately explained (assumption of costs).

In this case, the lawyer of a client had demanded the publication of the medical file consisting of objective physical findings, reports of measures taken, prescribed medicines and reports on his client's information. The patient data should be sent to prepare the actual main claim. For this purpose, he sent a request by mail to the attending physician. The doctor had not responded to the cover letter. Finally, the lawyer demanded a copied version of the file. When the doctor did not respond, the lawyer filed a lawsuit on behalf of the patient.

In the following procedure, the judges did not share the plaintiff's view. According to OLG, the defendant did not act unlawfully. Already in the cover letter, the lawyer should have stated that the copying costs are fully covered. Without such assurance, the doctor was not required by law to make and send appropriate copies of the treatment documentation. “The defendant did not have to react before the court. The plaintiff should first have offered the defendant the advance of the expected costs.”, so the judges in the opinion. The doctor estimated the cost of making and sending the copies at a total of 7.45 euros.

Basically entitled to inspection of the patient record
It must not give the impression that patients have no rights here. In principle, according to general case-law, patients have the right to inspect the original treatment file. However, as explained here, the law does not extend to the sending of patient records. Loud § 811 para. 1 BGB is the place of inspection of the place of storage. Thus, the inspection of the file must take place in the practice of the doctor or therapist. If copies are made, the costs must be borne by the patient. If the copies are to be sent by post, the cost of copies and mail must be borne by the applicant. (Sb)