Health Privacy
100honestyworkChapter 9
Learning Objectives
After completing this chapter, you will be able to:
· 1. Define the key terms.
· 2. List five purposes of the medical record.
· 3. List seven requirements for maintaining medical records as recommended by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).
· 4. Discuss guidelines for effective charting.
· 5. Discuss what is meant by timeliness of charting and why it is important in a legal context.
· 6. Describe ways to protect patient confidentiality that relate to the use of fax, copiers, e-mail, and computers.
· 7. Discuss the time periods for retaining adults’ and minors’ medical records, fetal heart monitor records, and records of birth, death, and surgical procedures.
· 8. Explain 13 guidelines to follow when a subpoena duces tecum is in effect.
· 9. Describe confidentiality obligations using electronic medical record keeping.
Key Terms
Credibility gap
Credible
Disclosed
Doctrine of professional discretion
Electronic medical record (EMR)
Encryptions
Firewalls
Medical record
Microfiche
Open-record laws
Privileged communication
Protocol
Public Health Services Act
Timeliness of documentation
THE CASE OF ANESHA AND THE LOST MEDICAL RECORD
Anesha’s 15-year-old daughter, Robin, is experiencing abdominal pain when exercising during her gym class. After reviewing the results of several tests, Robin’s pediatrician still cannot determine the cause of Robin’s abdominal pains. He asks Anesha if she had any obstetrical problems when she was pregnant with Robin. Anesha had just read a report in a national newspaper discussing the use of a hormonal treatment to control bleeding that was used on expectant mothers at about the time that Anesha was pregnant with Robin. The report stated that female children could develop serious uterine problems, including cancer, during their adolescence if their mothers were given a particular hormone during their pregnancy that was in use 15 to 20 years ago. The report went on to state that male children were unaffected. Anesha recalled that her obstetrician, Dr. C., had given her that particular hormone medication to control bleeding during her pregnancy with Robin and also when she was expecting Robin’s brother, Sam. Anesha wrote Dr. C. to request her medical record and ask if the doctor had prescribed the hormone treatment during her pregnancy. She received a letter stating that Dr. C. could not recall what he prescribed 15 or 16 years previously. The letter also stated that all his records were destroyed in a fire five years ago.
· 1. What should Anesha tell Robin’s pediatrician?
· 2. What does Robin need to know about her potential for a serious uterine diagnosis?
· 3. How could this situation have been prevented?
Introduction
The medical record is all of the written or electronic documentation relating to a patient. It includes past history information, current diagnosis and treatment, and correspondence relating to the patient. Billing information is often maintained in a separate accounting record. It is important to remember that the medical record is a legal document. Various laws cover the reporting, disclosure, and confidentiality of medical records. Thus, medical record management requires attention to accuracy, confidentiality, and proper filing and storage. Proper management is also necessary because the records may be subpoenaed, ordered by the court, during a malpractice case.
Each patient’s medical record contains essentially the same categories of material but with information unique to that patient. For example, not every patient has a consultation report from another physician or a surgical report. The format for the medical record reflects the physician’s specialty. An orthopedic surgeon, for instance, uses a format that includes questions pertaining to the patient’s mobility and pain level.
PURPOSE OF THE MEDICAL RECORD
Medical records serve multiple purposes. They provide a medical picture and record of the patient from birth to death. It is an important document for the continual management of a patient’s healthcare and furnishes documentary evidence of the course of evaluation and treatment. The patient record, which can result from a lifetime of medical visits, can assist the physician in diagnosing, treating, and tracking the patterns of the patient’s health. It also provides data and statistics on health matters such as births, deaths, and communicable diseases. A physician can track the ongoing patterns of the patient’s health through the medical record ( Figure 9.1 ).
The medical record is invaluable in an ambulatory healthcare or hospital setting as it provides the base for management of the patient’s care, alerts the physicians and staff to patterns and changes in patient responses, and provides data for research and education.
Figure 9.1 A Medical Records Filing System
In addition, because this legal document contains an objective, factual record of a patient’s medical condition and treatment, either the patient or the physician in a malpractice suit may use this information. Finally, the medical record is a legal document and, as such, should not contain flippant or unprofessional comments such as “The patient is very annoying.”
MED TIP
The medical record is a document that records both the care and treatment that a patient did and did not receive. The terms “medical record” and “medical chart” are used interchangeably.
The medical record serves as an important path for communication between medical personnel. In a case briefly discussed in Chapter 3 , Norton v. Argonaut Insurance Company, the medical record played a key role in documenting a medication error. A physician prescribed 2.5 c.c. of Elixir Pediatric Lanoxin, used to treat a heart condition, to be given orally to the baby by the infant’s mother while the baby was hospitalized. The doctor increased the baby’s Lanoxin dosage to 3.0 c.c. and told the mother about the new dosage. He signed a chart order that read, “Give 3.0 c.c. Lanoxin today for one dose only.” The mother gave the baby 3.0 c.c. as she was told to do by the doctor. A nurse, who was not familiar with the fact that the doctor allowed the mother to give the baby her medication, read the doctor’s order for 3.0 c.c. of Lanoxin to be given today. She then gave an injection of the drug to the baby not knowing that the mother had already administered the dose orally. This overdose of medication caused the baby’s death. In this case, the parents sued the doctor, nurse, and the hospital. In this landmark case, a nurse was held responsible for the infant’s death due to injecting a potentially lethal dose of a heart medication without questioning the prescribing physician. The physician’s order was unclear because he did not state that the mother would administer the 3.0 c.c. of Lanoxin orally (Norton v. Argonaut Ins. Co., 144 So. 2d 249, La. App. 1962).
CONTENTS OF THE MEDICAL RECORD
The medical record contains both personal information about the patient and medical or clinical notations supplied by the physician and other healthcare professionals caring for the patient. Personal patient information includes full name, address, telephone number, date of birth, marital status, employer, and insurance information. The clinical data or information includes all records of medical examinations, including x-rays, laboratory reports, and consent forms. The medical record will also contain any correspondence between the physician and the patient such as letters of withdrawal and consultation reports from other physicians. If a patient has provided informed consent for a procedure or test that has been explained to him or her, then a record of this explanation and the oral consent must be documented in the medical record.
As a legal document, both the defendant (physician) and plaintiff (patient) in a lawsuit can use the medical record. Because of its importance, some states have passed statutes that define what must be contained in the record. Many of these statutes reflect the accreditation requirements of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) or Medicare requirements as the minimum standard. Under these requirements, the medical record must include
· Admitting diagnosis.
· Evidence of a physician examination, including a health history, not more than seven days before admission or 48 hours after admission to a hospital.
· Documentation of any complications such as hospital-acquired infections or unfavorable medication reactions.
· Signed consent forms for all treatments and procedures.
· Consultation reports from any other physicians brought in on the case.
· All physicians’ notes, nurses’ notes, treatment reports, medication records, radiology and laboratory reports, and any other information used to monitor the patient.
· Discharge summary, with follow-up care noted.
The components of a standard medical record are listed in Table 9.1 .
MED TIP
Document patient comments such as “I’m all alone” or “I just feel I can’t go on.” Any comments of this nature should be relayed to the physician because they may indicate an emotional problem in addition to the physical one for which the patient is seeking treatment.
TABLE 9.1 Standard Medical Record
Patient’s complete name, address, home and work telephone numbers, Social Security number, birth date, and marital status Patient’s past medical history Dates and times of all medical appointments and treatments History of present illness Review of symptoms, reason for appointment Chief complaints (CC) Results of physical examination performed by physician Physician’s assessment, diagnosis, and recommendations for treatment Progress notes from past visits and treatments Family medical history Personal history Medication history with notations of all refill orders Treatments X-ray reports Laboratory test results Consultation (referral) reports Diagnosis Other patient-related correspondence: · Informed consent documentation, when appropriate · Signature for release of information · Copy of living will Documentation of all prescriptions and authorization for refill orders Documentation of dates when the medical record (or portions) is copied, including to whom it was sent Instructions concerning diet, home care, exercise, and follow-up appointments Hospital clinical records will also include: · Nurses’ notes (observations by the nursing staff) · Operative report · Delivery record · Anesthesia reports · Medication and treatment records · Social service reports · Physical therapy notes and reports · Dietary notes and reports · Fluid intake and output (I & O) charts · Discharge summary |
The medical record should never contain irrelevant material that is not related to the patient or the patient’s care. All healthcare personnel who provide care must document that care or treatment and then sign their name to the documentation. No personnel may sign any name other than their own. In addition, not all healthcare professionals will chart information on a patient’s medical record.
Table 9.2 provides guidelines for charting.
TABLE 9.2 Guidelines for Charting
· 1. Always double check to make sure that you have the correct chart. · 2. Use dark ink, preferably black, and write legibly. Printing is preferred if one’s handwriting is difficult to read. · 3. The patient’s name and identification number should appear on each page. A stamping device can be used for this purpose. · 4. Every entry must be dated and signed by the person writing the record. If initials are used then the person’s entire signature must be either in the medical record or on file in the medical office or institution. No one can sign for anyone else. · 5. Entries should be brief but complete. · 6. Use only accepted medical abbreviations known by the general staff. · 7. Correctly spell all medical terms. · 8. Never erase or use a liquid eraser, or in any way remove information from a medical record. · 9. Never leave spaces for someone to add later charting. · 10. Document all telephone calls and correspondence relating to the patient. · 11. Document all action(s) taken as a result of telephone conversations. · 12. Document all missed appointments. · 13. Document all incidents of noncompliance. · 14. Document all patient education. · 15. Do not record any personal opinions, speculations, or judgments. |
Corrections and Alterations
Some medical record errors are unavoidable. These might include errors in spelling, transcription, or inadvertently omitted information or test results. Occasionally, an error occurs when patient information is written in the wrong chart. It is perfectly acceptable to correct these errors as long as this is done properly. Nothing should be deleted. All corrections on paper files should be made by drawing a single line through the error, writing the correction above the error, dating the change, and then initialing it. Do not erase or use correction fluid. The original statement or error should never be obliterated. Many healthcare professionals will also note in the margin of the record why the change was made, as for example, “incorrect chart.” See Figure 9.2 for an example of a corrected chart notation.
MED TIP
Use only black or blue ink when charting in a medical record. Never use pencil or colored ink pens.
Electronic medical record (EMR) corrections are handled very differently than the paper record corrections. Each facility, depending on their software program, will have their own guidelines, or protocol , for correcting errors. One example occurs when an addendum, or revision, must be added after the date of the original entry. For example, in a medical office if a patient is unable to provide a urine sample on the day of his or her exam but brings one in the following day, a CMA or RN can draft a temporary revision or addition to the medical record, such as a test result, along with the notation “revision” and their name. The physician, who is the only authorized person, in this case, to permanently add or change the electronic record, will then go into the program and approve the revision and sign it, making it a permanent part of the record. Therefore, all needed revisions must be brought to the attention of the physician when using this software system. Any time this record is examined the word “revision” will show up. All entries should be double-checked before transmitting the information. The user should sign-off all electronic patient records when not in use.
While it is acceptable to make an immediate correction in a medical record, it should never be altered. In one case, the plaintiff’s attorney waited several weeks after the defendant was found not guilty and requested the medical record a second time. He noted that it had been altered after the case was closed. Upon review of the case, the judge ordered punitive damages.
Figure 9.2 Example of Corrected Chart Notation
Falsification of medical records is grounds for criminal indictment. In a New York case, two orthopedic surgeons performed a procedure on a patient that required implanting a prosthetic device into the hip joint. The salesman of the prosthetic device was in the operating room when the patient had to be reopened in order to correct the placement of the device. One of the surgeons left the operating room to return to his office and agreed that the salesman could assist the remaining surgeon. The salesman assisted by removing the prosthesis from the patient and preparing it for the surgeon to re-implant. The surgeon who left the operating room was sued for malpractice because the surgical record did not show that he had been replaced with a nonphysician during the surgery. The hospital and surgical nurse were also indicted for violating a duty imposed on them by the nature of their profession (People v. Smithtown Gen. Hosp. 736, 402 N.Y.S.2d 318, Sup. Ct. 1978).
Normal, as well as abnormal or negative, findings should all be noted in the medical record. Some doctors and staff become hurried and document only the abnormal. This can result in a problem if the medical record becomes part of a court record. If a jury does not see a test or procedure documented, then they tend to assume that it was not done no matter how strongly the physician or healthcare provider asserts that it was.
MED TIP
It is almost impossible to hide a change in a medical record as handwriting, type of ink, and paper used can all be detected through scientific testing.
Timeliness of Documentation
Medical records must be accurate and timely. Timeliness of documentation means that all entries should be made as they occur or as soon as possible afterward. Federal reimbursement guidelines mandate that all medical records should be completed within 30 days following the patient’s discharge from a hospital. The Joint Commission on Accreditation of Healthcare Organizations (JCAHO), an agency that oversees hospital accreditation standards, also has issued guidelines for timeliness in charting.
Late entries into the medical chart mean that, even for a brief period of time, the medical record is incomplete. This can cause a serious problem if the incomplete record is subpoenaed for a malpractice suit. Any entry made into a medical record after a lawsuit is threatened or filed is suspect. Also, if the medical record is not updated promptly, there could be a lapse of memory about what actually occurred.
Completeness of Entries
The medical record may be the most important document in a malpractice suit because it documents the type and amount of patient care that was given. If the medical record is incomplete, the physician or other healthcare provider may be unable to defend allegations of malpractice, even if there was no negligence. For instance, in a 1985 Missouri case, a physician ordered that a patient be turned every two hours. The attending nurses, however, failed to note in the patient’s record when they turned her. The patient claimed that she had not been turned as ordered and that this caused her to develop serious bedsores, which led to the amputation of one leg. The nurses presented an expert witness who testified that in some instances nurses become so busy that they place the needs of the patient, such as turning, before the need to document. The court eventually dismissed this case. However, not all such cases are dismissed (Hurlock v. Park Lane Med. Ctr. Inc., 709 S.W.2d 872, Mo. Ct. App. 1985).
MED TIP
The medical record is a legal document and as such can be subpoenaed into court as evidence in a malpractice case.
In a California case, an appeals court ruled that the physician’s inability to provide the patient’s medical record created the inference of guilt. (Thor v. Boska, 113 Cal. Rptr. 296, Ct. App. 1974.) This is an example of a situation in which the physician may not have been at fault. However, the fact that he was unable to provide any documentation about his treatment of the patient meant that even at the appeals court level, he did not win his case.
MED TIP
Remember that in the eyes of the court, if it’s not documented, it wasn’t done.
Credibility of the Medical Record
According to Webster’s dictionary, for something to be credible it must be believable or worthy of belief, trustworthy, and reliable. This is asking a lot of brief statements written in a medical record. However, credibility is exactly what is necessary for everyone, including lawyers, to acknowledge that the medical record is an accurate picture of what happened to the patient. A credibility gap exists if there is an apparent disparity between what is said or written and the actual facts. This gap results in a failure to accept one’s statements as factual, or a person’s professed motives as the true ones. For example, if a hospital record concerning a patient’s fall from a hospital bed includes an inserted statement such as “siderails were up,” a lawyer and jury may believe otherwise. If x-rays or other important medical records are missing, an assumption may be made that this was purposely done to hide something. Even a documented fire or flood can cause a credibility gap to occur such as in the case of Anesha and the Lost Medical Record at the beginning of this chapter.
MED TIP
Opinion and speculation do not belong in the medical record. Statements such as “It appears the mother hit the child,” while based on physical evidence, are not acceptable in the medical record. In this case, it is correct to describe the injury and the child’s statement.
One physician may be asked by an attorney to review a medical record pertaining to a medical malpractice case of another physician to help determine if there is evidence of malpractice. The second physician will be looking for gaps or other problems with the record such as illegible handwriting, delays in placing x-ray and laboratory reports into the file, altered records, or any contrived or invented documentation. Medical records are frequently examined during Medicaid or Medicare fraud cases in which a physician has falsely claimed payment for services that were never rendered.
MED TIP
Anyone processing medical billing records must be conscientious about the accuracy of names, dates, and services rendered. Careless documentation for claims of insurance payments can result in physicians being brought up on charges of fraud.
OWNERSHIP OF THE MEDICAL RECORD
State statutes may establish who owns the medical records. In most states, the general rule is that the physician or owners of a healthcare facility, such as a hospital or nursing home, own the medical records, but patients have the legal right of privileged communication (confidential information told to their physician) and access to their medical records. Therefore, patients must authorize release of their records in writing. Patients also have a right to see their records, whether written or electronic, and to request a copy of those records. Because some records are large and require duplicating time and expense, the physician or institution may charge for this service.
Patients have the right to expect that accurate medical records will be recorded and maintained in a safe manner. In some cases, such as for a patient with mental health problems, it may cause harm to the patient if they read their own records. Under the doctrine of professional discretion , a physician may determine, based on his or her best judgment, if the patient with mental or emotional problems should view the medical record.
Because the medical record is a written documentation of the contract established between the physician or healthcare provider and the patient, it must be retained for legal purposes. There is often a need for a healthcare provider, such as hospital personnel and consulting physicians, to view a patient’s medical record. However, when the need no longer exists, then the right to view the medical record, or access to it, stops.
CONFIDENTIALITY AND THE MEDICAL RECORD
To protect patient confidentiality, medical records should not be released to third parties without the patient’s written consent. If an attorney obtains a subpoena for the medical records, only the specific records that are requested, such as the surgical notes, should be copied and sent. For example, the fact that a patient is HIV-positive or has been seen in an emergency room after an auto accident may have no bearing on a malpractice suit relating to a surgical procedure.
MED TIP
Many healthcare facilities require all employees to sign a confidentiality agreement. Failure to honor this agreement can result in dismissal and possible legal action.
Taking photographs or other visual images of patients, such as videotapes, without the proper patient consent is an invasion of the patient’s privacy. The patient must sign an authorization form in order for photos and films, such as mammograms and x-rays, to be used or released outside of the medical facility. Guidelines for maintaining patient confidentiality when using a fax machine, copy machine, e-mail, or computer are listed in Table 9.3 .
MED TIP
An original version of a medical record should never be sent to a patient. A copy should be made of the original, and the copy sent to the patient who has requested the record in writing. In the case of x-ray film, the physician or institution may allow the original to be sent, with the stipulation that it be returned. Document when and where the file was sent.
Release of Information
Records should not be released to the patient without the physician’s knowledge and permission. The information contained in the record can be upsetting to some patients without the proper explanation. Insurance companies often have a desire to examine the medical records before they issue a reimbursement for a procedure. If the patient personally receives the records, then he or she must sign a release form. Only the specific information that is requested, not the entire medical chart, should be sent to the insurance company.
TABLE 9.3 Maintaining Patient Confidentiality When Using Fax (facsimile) Machines, Copy Machines, or E-mail
Fax Machines |
· 1. Send patient information via fax only when absolutely necessary. · 2. Verify the fax telephone number of the receiver before sending the fax. · 3. Make sure the intended receiver is there before sending confidential records by fax. · 4. Shred confidential fax papers that are no longer needed. Do not place them in the trash. · 5. Use a fax cover sheet that states “Confidential. Please return if received in error.” · 6. Only fax the specific documents requested, not the entire medical record. · 7. Do not leave confidential material unattended on a fax machine. · 8. Ideally, the fax machine should be located in a restricted access area. |
Copy Machines |
· 1. Never leave medical records unattended on a copy machine where others may read them. · 2. Shred all discarded copies. · 3. Be diligent about removing all papers caught in a paper jam. · 4. Do not print confidential medical information on a printer that is shared with another department or person. |
|
· 1. Avoid using e-mail to send confidential information. · 2. Do not allow other patients or unauthorized staff members to view a computer screen with confidential patient information. · 3. Screen savers should be used to prevent confidential patient information being viewed by others. · 4. Computer screens should be out of view of the general public. · 5. Passwords should be changed on a regular basis and not shared with others. |
In addition, patients must always sign a release form when they request to have their medical records and films sent to another physician. This often occurs when the primary care physician (PCP) has requested that the patient have a consultation with another physician.
In general, only a patient can authorize the release of his or her own medical records. However, there are some exceptions to the rule which include:
· Parents of minor children
· Legal guardian
· An agent (someone the patient selects to act on their behalf in a Health Care Power of Attorney)
Under some circumstances, such as with an emancipated minor, the minor and not the parent must sign the release. ( Figure 9.3 )
MED TIP
Because the patient does have a legal right to his or her medical record, it is never acceptable to refuse to turn over a copy if the patient has not paid his or her bill.
State hospital licensing regulations typically stipulate that the medical record is the property of the hospital and should not be removed from the premises unless there is a court order. Under the law, access to mental health records is more limited than is access to general medical records. See Chapter 10 for a further discussion of release of patient information under HIPAA regulations.
Figure 9.3 Copy of Form for Approval of Release of Medical Information
MED TIP
Never send the entire medical chart unless it is requested. Send out only the exact material, or portion of the medical record, that is requested.
State Open-Record Laws
Some states have freedom of information laws, called open-record laws , that grant public access to records maintained by state agencies. However, medical records are generally exempt from this statute, so the public cannot obtain such information. In some cases, though, if the private patient’s interest in confidentiality is outweighed by the benefit of disclosure for the public interest, then disclosure is allowed. For example, in the case of Child Protection Group v. Cline, the court allowed personal information about a bus driver’s psychiatric records to be disclosed , or made known, to parents of schoolchildren when there was a concern that he would not be able to drive the school bus safely. (Child Protection Group v. Cline, 350 S.E.2d 541, W. Va. 1986.)
Alcohol and Drug Abuse Patient Records
The Public Health Services Act protects patients who are receiving treatment for drug and alcohol abuse. Any person or program that releases confidential information relating to these patients is subject to criminal fines. Hospitals maintain a patient registry at their switchboard or front desk, but they cannot divulge that a patient with drug or alcohol abuse problems is even a patient at their facility.
An exception to this disclosure of information law would be if the patient should require emergency care that would necessitate divulging the abuse problem.
RETENTION AND STORAGE OF MEDICAL RECORDS
Each state varies on the length of time for which medical records and documents must be kept. It also varies by state depending on whether it is the record of a minor or adult. However, most states require that medical records should be stored for 10 years from the time of the last entry. Most physicians store medical records permanently because malpractice suits can still be filed within two years from the date that the occurrence or alleged malpractice event became known.
Using the statute of limitations as a guide for retaining records, the medical record of a minor would be kept until the patient reaches the age of maturity plus the period of the statute. As an example, in a state where the age of maturity is 21 and the statute of limitations for torts is two years, the retention period for a newborn’s record would be 23 years.
MED TIP
Remember that the statute of limitations can be extended for many reasons. It is always better to err on the side of retaining medical records too long, rather than not long enough. Check your own state to determine the statute of limitations for record keeping.
Due to limited storage space, medical records may have to be destroyed after a period of time has elapsed. State laws should always be checked before destroying any records.
The courts take the requirement to retain records seriously. An Illinois appeals court declared that a patient could sue when a hospital failed to retain her x-rays (Rodgers v. St. Mary’s Hospital, 556 N.E.2d 913, Ill. App. Ct. 1990). In a Florida case, a woman whose husband died during the administration of anesthesia was unable to present expert testimony because her husband’s anesthesiology records were missing. The court ruled that she could sue the hospital because it was the hospital’s duty to make and maintain medical records (Bondu v. Gurvich, 473 So. 2d 1307, Fla. Dist. Ct. App. 1984). Table 9.4 describes time period recommendations for retaining medical records as adopted by the American Health Information Management Association (AHIMA).
In the event that a physician cannot retain patients’ records beyond a 10-year time frame, there are certain considerations for the methods of destruction:
· Maintain careful records relating to when a record can be destroyed.
· Designate a person to be responsible for deciding, based on established policies, what records to keep and what to purge.
· Define which records are kept on-site and which are off-site.
· Maintain a log that details which records have been destroyed, as well as when and how this was done.
· Provide a method for disposal (e.g., shred, pulp, or incinerate) that destroys all information in the record. Some facilities hire a service that handles the destruction of medical records. This service must abide by HIPAA guidelines. (See Chapter 10 for HIPAA.)
Storage
Records of current patients are usually kept within the physician’s office for easy access ( Figure 9.3 ). Older records of former patients do not need to be kept in the office where they will take up valuable space. Physicians often rent storage space. It is important to use a clean, dry warehouse space for storage. If records that are needed in court have been destroyed in a warehouse fire or flood, the court may believe that it was a deliberate attempt by the physician to avoid the truth. Some physicians hire a service to place all their records on microfiche , which results in a space-saving, miniaturized film of the medical record.
TABLE 9.4 Time Periods for Retaining Medical Records
Adult patient records |
Ten years after the most recent encounter |
Minor’s health records |
Age of maturity plus statute of limitations |
Fetal heart monitor records |
Ten years after infant reaches maturity |
Medicare and Medicaid records |
Five years |
Register of birth |
Permanently |
Register of death |
Permanently |
Register of surgical procedures |
Permanently |
Immunization records |
Permanently |
Chemotherapy records |
Permanently |
Electronic Medical Records
The electronic medical record (EMR) , in which all patient-related data are computerized into one record, is becoming more widespread in all aspects of health care. Data and patient records can be created, modified, authenticated, stored, and retrieved by the computer. This has made record maintenance and retrieval much more efficient and effective in medical offices, clinics, laboratories, and hospitals. However, it has resulted in increased concerns about patient privacy as so many healthcare professionals may now be able to view a patient record unless precautions are taken. A well-designed computerized system may offer better protection than a “file-drawer” storage system because there are passwords, encryptions (scrambling and encoding information before sending it electronically), and the use of firewalls (software to prevent unauthorized users) to maintain security.
Legal confidentiality obligations apply to all methods of record keeping. With a computer-based system, it is even more important to be diligent in protecting the patients’ rights because generally more people have access to the computerized records. Special safety measures should be taken, such as establishing personal identification and user verification codes for access to records. Computer-based records should be accessed only on a need-to-know basis. Not everyone in a healthcare facility should have authorization to pull up patient records on the computer screen.
MED TIP
Security is an ever-present concern with electronic medical records. For example, the computer should not be left on when the patient is alone in an exam room. In addition, computer “hackers” can often access and change information that is not protected with tight security systems such as firewalls.
Loss of Medical Records
As Anesha’s case at the beginning of this chapter indicates, the loss of a medical record can be a frustrating, and even a harmful experience for all those involved. It can even result in a deadly outcome if vital information relating to the patient is gone. Whether a medical record is lost through careless filing of the record or as a result of a deliberate attempt to prevent litigation, it is always preventable. There are many safeguards that a medical office, clinic, and even a hospital can implement to prevent the loss of a record. ( Figure 9.4 )
· 1. All records removed from files should be listed in a journal. The person to whom the file was given and the date should be recorded.
· 2. Place some indication in the file cabinet or EMR that a file has been removed. Many offices use a color-coded insert to alert personnel about the file removal.
· 3. If possible, designate one person responsible for maintaining a list of all records removed from files. That person then collects all files and returns them to the proper location.
· 4. Placing all medical records on microfiche is an excellent way to safeguard against record loss. The microfiche can be “backed up” with a duplicate film that is kept in a safe, fireproof area.
Figure 9.4 Medical Assistant uses a Laptop Computer for Bedside Charting
Juries tend to be unsympathetic in a court case that revolves around a lost medical document or record. For example, during the discovery phase in the case of Keene v. Brigham & Women’s Hospital, the plaintiff was told that the hospital had lost his medical records. A default judgment for the plaintiff was entered at the Appeals Court level and upheld at the Supreme Court level. The courts maintained that without the medical record containing evidence relating to the medical malpractice claim against the hospital, it was impossible to make a determination of guilt or innocence of the defendant (Keene v. Brigham & Women’s Hosp., Inc. 439 Mass. 223, 2003).
REPORTING AND DISCLOSURE REQUIREMENTS
State laws require the disclosure of some confidential medical record information, such as birth and death records, without the patient’s consent. These items are discussed in Chapter 7 under public duties of the physician.
MED TIP
Laws regarding medical records vary from state to state. Healthcare professionals who have any involvement with the medical record should learn what the statutes in their own state require.
USE OF THE MEDICAL RECORD IN COURT
Improper Disclosure
Healthcare providers and institutions such as hospitals and clinics may face civil and criminal liability for releasing medical records without the proper patient authorization. Private citizens can institute a civil lawsuit to recover damages if their records are released inappropriately. Wisconsin statutes provide for compensatory as well as punitive damages for improper disclosure (Wis. Stat. § 252.15(8)). Many of the cases that have been tried for improper disclosure relate to HIV and AIDS patients. While disclosure of a patient’s HIV and AIDS status to the health department is required by state statute, disclosure to any other person or organization is not allowed.
Subpoena Duces Tecum
A subpoena duces tecum is a written order requiring a person to appear in court, give testimony, and bring the particular records, files, books, or information that are described in the subpoena. The court issues a subpoena for records that document patient care and, in some instances, billing and insurance records. The purpose of issuing a subpoena for a patient’s medical record is to receive written evidence of the patient’s medical condition and the care that was received. All copying costs associated with subpoenaed records must be borne by the attorney requesting the subpoena.
MED TIP
Ordinarily, a medical record cannot be sent to anyone without consent in writing from the patient and the physician’s approval. One exception to this is when a record is subpoenaed.
A local sheriff or federal marshal often serves a subpoena, but many state statutes allow anyone over the age of 18 to serve a subpoena. The subpoena may be served either by certified mail or in person, depending on the state requirement.
In general, only the person who is named on the subpoena can accept it. The subpoena can then be said to “have been served.” In some cases “a conservator of the record,” such as a medical records administrator, is authorized to accept a subpoena on behalf of a healthcare facility or a physician. Before accepting a subpoena, the person accepting the subpoena must make sure to check that the name of the attorney and the court case number are on the subpoena. In addition, they must check to make sure that the physician named on the subpoena saw the patient.
When a record, such as a medical file or chart, is subpoenaed, only the parts of the record requested should be copied and provided to the requesting attorney. Unless the original document is subpoenaed, a certified photocopy may be sent. If the original record is subpoenaed, a photocopy is marked COPY and placed in the file along with a note about the location of the original copy. Until the original is returned, a receipt for the subpoenaed record should be placed in the file, and the patient or the patient’s attorney should be notified that the record has been subpoenaed. Any notice relating to subpoenaed records should be sent to the patient by certified mail.
If a medical record has been subpoenaed, or requested by the court, certain guidelines should be followed.
· 1. Notify the physician that a subpoena has been received. In most cases, a subpoena has to be personally served to the person named on the document. In the case of an institution, such as a hospital, a “custodian of the record” such as a hospital records administrator will be appointed to receive a subpoena for hospital medical records.
· 2. Notify the patient that his or her record has been subpoenaed. If the patient is represented by an attorney and suing the physician, then the physician and his or her staff cannot contact the patient except via the attorney.
· 3. Notify the physician’s attorney that a subpoena has been received.
· 4. Verify that all the information on the subpoena is correct. Pay particular attention to identification numbers such as the Social Security number. In some cases, patients may have the same name, and a subpoena is sent to a physician in error.
· 5. Carefully make sure that the requesting attorney’s name and phone number as well as the court case (docket) number are listed on the subpoena.
· 6. Review the records to make sure that all the records requested are available. No attempt should be made to alter, delete, or add any information to the record.
· 7. Make sure that a copy of the medical record is acceptable. In some cases, only the original record will be accepted. Most physicians do not want their original records to leave their possession.
· 8. Photocopy the original record and number all the pages. Place the total number of pages on the front of the file folder. Prepare a cover list of the contents and place that in the file folder along with the medical documents.
· 9. Turn over only the specific materials that have been requested.
· 10. If an EMR is requested, send a labeled disc containing only the requested material.
· 11. After the medical record materials relating to the subpoena have been compiled, lock the file in a secure place.
· 12. Turn the records directly over to the judge on the due date. The materials should not be left with a clerk or receptionist.
· 13. The healthcare professional who takes the records to court should be prepared to be sworn in to make the records admissible as evidence.
· 14. Check with the court to make sure that the trial date is the same as the date listed on the subpoena.
POINTS TO PONDER
· 1. Do you agree with the statement, “If it’s not documented, it wasn’t done?” Why or why not?
· 2. In order to protect your physician/employer, should you “hide” to avoid receiving a subpoena duces tecum? Why or why not?
· 3. As a healthcare professional, are you able to read the medical record of a person you know? Why or why not?
· 4. Would it be helpful to other healthcare professionals who will be using the same patient’s medical record to document that patient’s poor attitude by including a statement such as “bad attitude?” Why or why not?
· 5. Can you be liable if you or your staff lose a patient’s medical record?
· 6. A patient requests her physician’s office to change her diagnosis in her medical record from R/O (rule out) bladder infection to “bladder infection,” because her insurance will not pay for an R/O diagnosis. Should the record be changed?
DISCUSSION QUESTIONS
· 1. What is the significance of the medical record for the physician? For the healthcare professional? For the patient?
· 2. Who owns the medical chart?
REVIEW CHALLENGE
Short Answer Questions
· 1. How long should a medical record be kept for a one-year-old child who resides in a state with a statute of limitations of two years for a tort offense?
· 2. What does a subpoena duces tecum request the subpoenaed person to provide?
· 3. Exactly what does “timeliness in documentation” mean?
· 4. What are some of the precautions to follow when using electronic medical records?
· 5. What would you say to a patient who demands his x-ray and says “It’s my x-ray. I paid for it?”
· 6. What is the doctrine of professional discretion?
· 7. What are some examples of a “custodian of the record?”
· 8. Who can serve a subpoena?
· 9. Explain the precautions that must be taken when faxing medical records.
· 10. Explain the precautions that must be taken when using a computer in a medical setting.
Matching
Match the responses in column B with the correct term in column A.
Column A |
|
Column B |
_____ |
1. subpoenaed |
a. made known |
_____ |
2. credible |
b. scrambling & encoding information |
_____ |
3. disclosed |
c. electronic medical record |
_____ |
4. chronological record |
d. when something has been requested by the court |
_____ |
5. falsification of records |
e. in the order of occurrence |
_____ |
6. subpoena duces tecum |
f. Joint Commission on Accreditation of Healthcare Organizations |
_____ |
7. EMR |
g. reliable |
_____ |
8. timeliness |
h. grounds for criminal indictment |
_____ |
9. encryptions |
no late entries on medical chart |
_____ |
10. JCAHO |
j. written order to bring materials to court |