[Lawyer’s Name and Bar Number]
[Lawyer’s Address].
[Lawyer’s Phone Number]

Lawyer for Petitioner

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF [Name of County]

 

[Name of Petitioner],
      Petitioner,

vs.

[Name of Respondent],
      Respondent

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Case No.: [case number]

NOTICE OF PETITION FOR
ORDER TO SHOW CAUSE,
per CCP 1985.7;

MEMORANDUM OF POINTS AND AUTHORITIES AND
PETITIONER'S AFFIDAVIT
IN SUPPORT THEREOF

            Date:
            Time:
            Dept.

TO RESPONDENTS AND THEIR COUNSEL:

PLEASE TAKE NOTICE THAT on [date] in Department [department letter] of the

[courthouse name] , located at [courthouse address] at [time] or as soon thereafter

as the motion may be heard, petitioner, [petitioner name] will and hereby does petition

the Court for an order to show cause why petitioner attorney’s agent may not have

access to and copy all of the medical records relating to petitioner which are in the

possession or control of respondent, or any of respondent’s employees, contractors, or agents,

and to require respondent to pay legal costs and attorney fees of this petition.

This motion is based upon the failure of Respondents to comply with a request for

these records served upon them pursuant to Code of Civil Procedure Section 1985.7,

as further described in the attached Memorandum of Points and Authorities, Affidavit of

Petitioner, its supporting documents, and on such argument and evidence as may be

provided at the hearing.

 

 

Dated: [date]

 
 

[Attorney signature]

Attorney for Petitioner

MEMORANDUM OF POINTS AND AUTHORITIES

I.

STATEMENT OF FACTS

Petitioner has received medical care from Respondent.

On [date] Petitioner sent a written request for copies of the medical records to Respondent

pursuant to HSC §123110. (Exhibit 1, attached)

Respondent did not make the records available within the statutory time limit.

On [date] Petitioner’s attorney [attorney's name]sent to Respondent, pursuant to

EC 1158, an authorization to release medical records, a written request for release of records,

and an agency agreement, pursuant to BPC § 22451(b), designating [name of agent]

as attorney’s agent to copy the records.(Exhibit 2, attached)

Respondent did not make the records available within the statutory time limit.

[Additional Gory details can be added]

 

STATEMENT OF LAW

 

Evidence Code § 1158 provides:

1158. Whenever, prior to the filing of any action or the appearance of a defendant in an action, an attorney at law or his or her representative presents a written authorization therefor, . . . a physician . . . or a licensed hospital, shall make all of the patient's records under his, hers or its custody or control available for inspection and copying by the attorney at law or his, or her, representative, promptly upon the presentation of the written authorization.

No copying may be performed by any medical provider . . . when the requesting attorney has employed . . . anyone identified in Section 22451 of the Business and Professions Code as his or her representative to obtain or review the records on his or her behalf.

The presentation of the authorization by the agent on behalf of the attorney shall be sufficient proof that the agent is the attorney's representative.

Failure to make the records available, during business hours, within five days after the presentation of the written authorization, may subject the person or entity having custody or control of the records to liability for all reasonable expenses, including attorney's fees, incurred in any proceeding to enforce this section.

. . . Where the records are delivered to the attorney or the attorney's representative for inspection or photocopying at the record custodian's place of business, the only fee for complying with the authorization shall not exceed fifteen dollars ($15), plus actual costs, if any, charged to the record custodian by a third person for retrieval and return of records held offsite by the third person.

Code of Civil Procedure § 1985.7 provides:

1985.7. When a medical provider fails to comply with Section 1158 of the Evidence Code, in addition to any other available remedy, the demanding party may apply to the court for an order to show cause why the records should not be produced. Any order to show cause issued pursuant to this section shall be served upon respondent in the same manner as a summons. It shall be returnable no sooner than 20 days after issuance unless ordered otherwise upon a showing of substantial hardship. The court shall impose monetary sanctions pursuant to Section 1158 of the Evidence Code unless it finds that the person subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

 
ARGUMENT

 

1. Petitioner properly tendered record request, release and agency agreement, according to code sections cited above.

2. Respondent wrongfully and willfully refused to make the records available as required.

3. Petitioner has thus been forced to seek this order to obtain the records.

4. CCP 1985.7 states that in such a situation, the court shall award costs of obtaining this order, except for substantial justification shown. [emphasis added]

5. Defendant had no substantial justification for failing to respond.

6. Therefore, Respondent should be ordered to produce copies of all of Petitioner's medical records forthwith, and to pay the costs and reasonable attorney fees of seeking this order.

DECLARATION UNDER PENALTY OF PERJURY

I, [name of petitioner], do hereby declare under penalty of perjury, under the laws of California, that the foregoing facts are true.

Signed

Date

Place