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Introducing Legal Adventures in Mexico

Spencer McMullen
Spencer McMullen

Bienvenidos! I’m Spencer McMullen a former California boy who now iives in Guadalajara and has offices in both Guadalajara and Chapala, on Lake Chapala.

I received my law degree in Mexico, as well as a specialty degree, and hold eight postgraduate degrees. I also am an official court translator and a translator authorized by the United States Consulate. I have thousands of clients, most of them are foreigners. I have seen quite a few disputes and issues over the years and have found ways to solve them. I learned that the best way to solve problems is to avoid them, so I try to educate the public through my blog.

I’ll be writing on a wide variety of legal topics that are of interest to expats in Mexico, from immigration to the judicial system to applying for Mexican citizenship among others.

Today, though, I want to focus on medical treatment in Mexico and your medical records.

Many people either come to Mexico for medical procedures or already live here and become ill or injure themselves and need the services of a doctor or hospital. In most cases, they generally are happy with the services provided.

A problem often arises when patients want to obtain medical records from their doctor or hospital. We have found that many doctors and hospitals are reluctant to give patients their medical records due to fear of lawsuits, sloppy record keeping that does not comply with the law or general laziness. This can often place the patient’s life in jeopardy. Frequently, these records are requested for use by other medical professionals for surgeries or other procedures that are urgent, but the hospital or doctors place many roadblocks for the release of records.

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The right of a patient to request a full copy of their medical file (and not some quick summary made up by the doctor or hospital) is a human right under Mexican and international laws. The Mexican Constitution guarantees health rights in articles 1 and 4 as well as in international treaties such as part 25 of the Universal Declaration of Human Rights and article 12 of the International Covenant on Economic, Social and Cultural Rights.

Mexico publishes official guidelines for a number of products and services and they are called NOMs (Norma Oficial Mexicana). There is a specific NOM, NOM-004-SSA3-2012 regulating the handling of medical files and patient’ rights to receive their medical file, and exactly what it should contain.

The above mentioned NOM in section 5.4 states that the patient who gives information as well as the person who receives medical attention has ownership rights over the information for the protection of their health as well as the protection of the confidentiality of their information in the terms of this law and others.

Some doctors refuse to give records, often saying they do not have a record, even though a year or two – or even less – has passed from the last visit. This is a violation of the NOM, which in the 2nd paragraph of section 5.4 states that “due to the foregoing, for documents prepared in the interests of and for the benefit of the patient, they shall be kept for a minimum period of 5 years starting from the last medical act.”

Sections 5.5.1 and 5.6 state that any requests for medical information must be made in writing and only given to third parties when requested by the patient, guardian, legal representative or another doctor authorized by the patient, guardian or legal representative. If you are living outside of Mexico you can grant a power of attorney to someone to be able to request the records on your behalf.

Many times when patients ask for their medical records they are given a one-sheet summary instead of their medical file. Section 6 to of the NOM clearly explains what makes up the clinical file for general and specialty consultations.

The NOM states that the clinical file must contain a clinical history, questionnaire with family and substance history, physical exploration, prior and current results of laboratory studies and tests and others, diagnosis or clinical problems, prognosis, recommended therapy and progress notes.

For each doctor visit the following information should be collected: evolution and update of the patient’s clinical profile (including any substance abuse or tobacco use), vital signs as necessary, relevant results of any tests done or diagnosis and treatment that were previously requested, diagnostic or clinical problems, prognosis, treatment and medicines prescribed. For medicines, they should note at the very least the dose, how administered and how often.

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Medical notes for hospitalization must contain at a minimum: vital signs, questionnaire, physical exam and mental state as needed, test and lab results, treatment and prognosis, clinical history, evolution notes, and should be prepared daily by the treating physician.

There are other requirements in the NOM for post-op medical reporting.

As you can see, the records that are required to be kept are quite detailed. The problem we have seen is that few doctors are aware of the NOM and their obligations to keep detailed records or visits and tests.

Doctors and hospitals may only make you put your request in writing and not put any other further conditions on your request for your medical records, although for hospitals, you may want to put the approximate date of admittance so they can more easily locate your records. If they place more restrictions, you may complain to the State / Federal Medical Arbitration Board (CONAMED) or your state agency that oversees doctors and hospitals. We have experienced doctors and hospitals refusing to accept written requests, so we filed complaints with the aforementioned agencies and they then complied.

This is your health and your life and the law. Do not let them bully you or wear you down when it comes to requesting your medical records. Do not let them give you a one-page summary instead of copies of tests, lab results, EKGs and other medical records you will need for treatment.

A good practice would be to sit down with your doctor to make sure he/she is aware of the NOM so proper, complete medical records can be kept. An even better practice would be to request and maintain your records in an accessible place in your home so your family will know where they are in the event you are in an accident or hospitalized and need to access them.