Broken Records

Ethel Lowther thought her medical records would be easy to find--until she had to go looking for them

When Ethel Lowther set out to find her medical records earlier this summer, she had no idea she was embarking on a trail that would lead her through a local hospital, a TV news station, a state representative's office and the Arizona Medical Board before concluding with not one, but two attorneys.

The 53-year-old accountant, who relocated from Tucson to San Diego last year, came home one day in late June to find a disturbing message from her doctor on her voicemail: There was something unusual about her mammogram, and he needed to see her earlier X-rays immediately.

Lowther's doctor had noticed some unusual asymmetry and thickening of tissue in her breasts, so he wanted previous mammograms to see if it had recently developed. Without the baseline of the earlier tests, Lowther would have to wait another half-year to see if she had some kind of problem.

Understandably uneasy after hearing the news, Lowther tried to track down Southwest Radiology, the Tucson medical office where she had mammograms done in 2001 and 2002. But her search came up empty, because the company, owned by Dr. Justin Weiss, had shut its doors after entering bankruptcy in 2003.

Her next step: Calling another local radiology office, where a clerk pointed her in the direction of Northwest Hospital. A staffer there recalled seeing a report on TV news about how records from Southwest Radiology were found abandoned in a trash container a few months ago--a news flash that only increased her anxiety about what had happened to her X-rays.

"I felt pretty crappy," Lowther remembers. "At this point, I don't know if there's something wrong with my mammogram or what. I just know that they were really insistent that they needed my records. Needless to say, I didn't have a wonderful Fourth of July."

Lowther's detective work continued with a visit to KVOA-TV's Web site. Channel 4 reporters had done a series of stories in May after they discovered that medical records from Southwest Radiology had been tossed from a storage locker into a Dumpster after the rent went unpaid.

A KVOA news director suggested Lowther call state Rep. Jonathan Paton, R-Tucson, who had worked with the Arizona Medical Board to secure the records and see that the locker's rent was paid until proper custody could be determined.

Paton put Lowther in touch with the medical board's public information officer, Roger Downey, who directed her to Weiss' bankruptcy attorney, Eric Slocum Sparks. After an exchange of paperwork, Lowther got a letter from Sparks' office saying her X-rays had evidently been sent to a health-care provider and not returned.

That didn't sound right to Lowther, so she got on the phone to Sparks' office, only to be told that the paralegal who was handling her case was on vacation for the week and that Sparks himself was out of the office until the second week of August.

The run-around sent Lowther back to the medical board to complain about the dead end. Downey tracked down Weiss' second attorney, Robert Kuhn, who finally found Lowther's records last week at a secure facility. Kuhn says the records had been misfiled in a permanent repository and were never among the records in the trash.

Lowther was relieved to finally get her records in the mail last Thursday, July 21. A subsequent trip to the radiologist produced the happy news that the irregularity in her X-rays was nothing new.

But the entire experience left her "stressed, to say the least."

"I'm really amazed I had to go through this," she says. "Added to the anxiety of whether I'm OK or not is all this extra stress and all the phone calls and having to do all this in order to retrieve my records. It was a month of living with this uncertainty, and being afraid I would have to live with this uncertainty for another six months at least."

Medical records are often sensitive documents that contain vital information--from baseline conditions to Social Security numbers--that people have good reason to want to keep private.

Congress set new national regulations for medical records with the Health Insurance Portability and Accountability Act, which took effect in spring 2003. The federal law sets standards for maintaining medical records and limits how the records can be shared, although privacy advocates complain that the law contains numerous loopholes.

State law, meanwhile, requires medical practices to keep records for at least six years after a patient's last visit. If a doctor destroys records sooner, or doesn't properly destroy them after six years, the Arizona Medical Board can bring a disciplinary action, says board spokesman Downey.

"We obviously would like to make sure medical records are treated carefully," Downey says. "We don't want identity thieves gaining access to important personal information that is on just about every medical record."

But the board's powers are limited, because it only licenses doctors, not corporations or insurance companies. So if a doctor should die, or sell a practice before moving out of state, or declare bankruptcy and have all his assets legally placed in the hands of a trustee, then the medical board has no power to take disciplinary action.

In this case, Dr. Justin Weiss filed for Chapter 11 bankruptcy in January 2003 for Southwest Radiology to reorganize the company, claiming more than $1.3 million in debt. A year later, in February 2004, Weiss amended the filing to a Chapter 7 liquidation.

Weiss continues practicing as a radiologist in Arizona, although his attorney declined to reveal where he's employed. (Downey says Weiss is now working for TR Medical by Design in Tucson.)

Weiss' legal responsibility for the records that ended up in a Dumpster remains murky.

Weiss' bankruptcy attorney, Eric Slocum Sparks, was out of town last week and couldn't be reached for comment. Weiss' other attorney, Robert Kuhn, says he can't discuss certain details of the situation because he's still trying to sort them out with his client.

But he insists that former patients have no need to worry about their records.

"As far as we know, although some people were moving around records they shouldn't have, or without discussion with anyone first, all the records are under safekeeping," says Kuhn, who successfully tracked down Lowther's records at Iron Mountain, a storage repository for medical, legal and other records used by Southwest Radiology. The records hadn't been found sooner because they were filed under the wrong year.

But how did so many of Southwest Radiology's other records end up in a Dumpster at National Self-Storage, 2424 N. Oracle Road? Kuhn explains that once Weiss' assets were placed in the hands of trustee Daniel Dominguez of Epiqtrustee in the bankruptcy process, Weiss no longer had legal control of the records.

But according to bankruptcy court records, Dominguez filed a motion nearly a year ago to legally abandon any medical records and X-rays because they were of "inconsequential value or a burden to the Chapter 7 estate."

Kuhn claims that in August 2004, someone who worked at a one-time branch of Southwest Radiology (which had been spun off prior to the bankruptcy) moved records to the National Self-Storage locker, where Weiss had sometimes kept files and X-rays before shipping them to Iron Mountain, according to Kuhn.

Kuhn insists Weiss had no knowledge that any records were in the storage lockers, although a minute entry from an October 2004 hearing in bankruptcy court, which included Weiss' bankruptcy attorney, shows that the attorney for the trustee, Scott Gibson, "states that there are three storage lockers filled with boxes of X-rays and patient records."

Gibson, of the Gibson, Nakamura & Decker law firm, recalls that the storage lockers contained records when his client became the trustee.

"We made it clear to Eric Sparks from the beginning that we weren't taking responsibility for the records," Gibson says.

In January 2005, U.S. Bankruptcy Judge James M. Marlar granted the trustee's request to abandon the estate's medical records and X-rays, as well as any contents of the storage units. According to Downey, that maneuver technically put responsibility for the records back in the hands of Weiss.

A few months later, in May, employees of the storage facility moved the boxes of records to a Dumpster inside a chain-link fence on their property, because the rent had not been paid on the lockers. That's when the records were discovered by KVOA reporters, who contacted Downey at the medical board.

Downey credits Weiss for moving quickly to pay the rent on the lockers and move the records back once he learned how the records had been put in a Dumpster. Weiss has since hired Iron Mountain to catalogue and store the records.

Downey says the case remains under investigation by the medical board.

The entire incident "highlights an ambiguity in the law, especially now that we have so much identity theft in Arizona," says Downey.

Paton, a freshman Republican whose District 30 includes eastside Tucson, Green Valley and Sierra Vista, remains determined to resolve at least part of that ambiguity during the next legislative session. Before he shipped out to Georgia's Fort Benning to complete his Army Infantry training, Paton said he was "stunned and outraged" when he first heard about the records that had been tossed into the trash bin.

As he looked into the situation, he became "increasingly concerned" when he realized the medical records had fallen between the cracks.

"What was more disturbing to me than the actual act--because that's one isolated moment in time--was that there didn't seem to be anyone who was responsible to take care of this problem," Paton says. "There didn't seem to be any direction."

Paton, who met earlier this summer with representatives of the medical board and other state health officials, plans to pursue legislation next year that will include three things:

· Mandatory licensure through the appropriate government agency for any person or entity that keeps or secures physical- and mental-health records, including doctors, labs and insurance companies.

· A uniform process for notifying patients and disposing of records when medical practices and other health-care-related companies are sold, declare bankruptcy or otherwise go out of business.

· A contractor who specializes in recovering abandoned records for proper storage or disposal.

"If you find a bunch of records in a Dumpster or abandoned or treated negligently, you have somebody who will help secure the records and get them where they need to be going," says Paton, who adds that he doesn't want government to get into the business of actually storing records.

Downey says the medical board recognizes a need to update the handling of medical records. He sees a good model in Texas, where law calls for an appointed receiver to manage and return abandoned records.

"It's a good, up-to-date law that suggests what we should be doing," he says.

Paton calls Southwest Radiology's abandoned records "a wake-up call."

"We have an aging population," he says. "The number of records is growing. Unlike the past, we've got new kinds of people who are gaining access of medical records--new entities and corporations and new fields of medical practice."

Kuhn says the bankruptcy reform passed earlier this year by Congress may solve some of the problems by specifically setting a new federal standard for handling records for practices that go bankrupt: A trustee takes the records and holds them for a year. The trustee is required to run a notice in newspapers that former patients have one year to recover their records before they will be destroyed. The trustee is also required to promptly attempt to notify former patients, their family members or their insurance companies that they have a year to claim their records.

If, after a year, the records are not claimed, the trustee can destroy the records.

Kuhn complains that the new law could create problems for patients who don't find out about the bankruptcy.

"What happens to the patient who moves and leaves no forwarding address and two years later has that lump in his jaws that's bothering him a little bit, and there's no baseline?" he wonders.

Downey suggests that state lawmakers may want to pass a law extending the one-year period.

As someone who has spent the last month chasing records in such a case, Lowther agrees that the one-year waiting period is too short.

"If they had done that in this case, I would not have gotten my records," Lowther says. "They would have been gone."

Lowther says that she now plans to keep her X-rays herself. When Kuhn finally tracked down her records, he encouraged her to let him send them to her lab or doctor. She insisted they come straight to her at her office, where she could sign for them.

"I'm not leaving them anywhere," she says. "You think that records are protected and you're safe. You go to the doctor and sign these privacy forms, but I'm not sure it means anything if this can happen."

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