After an entry in the medical record has been written or keyed and an error is discovered

-----------------------------=~!!""""'

Judson, K., & Harrison, C. (2016). Law and ethics for the health professions. (7th ed. ). New York: McGraw- Hill.

Law&Et • cs FOR HEALTH PROFESSIONS

KAREN JUDSON CARLENE HARRISON

Medical Records and Informed Consent

LEARNING OUTCOMES After studying this chapter, you should be able to:

LO 7. I Explain the purpose of medical records and the importance of correct documentation.

LO 7.2 Identify ownership of medical records and determine

how long a medical record must be kept by the owners.

LO 7.3 Describe the purpose of obtaining a patient 's consent for release of medical information, and explain the

doctrine of informed consent.

LO 7.4 Describe the necessity for electronic medical records and the efforts being made to record all medical records electronically.

175

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LO 7.1 Explain the purpose of medical records and the importance of correct documentation.

medical record A collection of data recorded when a patient seeks medical treatment .

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FROM THE PERSPECTIVE OF . .. -

SALLY, MICHAEL, AND TERESA handle requests for release of patients' medical records for a midwestern hospital serving a five-state area. They emphasize that they can release records only with signed authorization from the patient or on subpoena, and that they may then release photocopies, but never original medical records. When some- one visits the hospital to pick up copies of a patient's records, that per- son is asked to show identification.

Michael lets experience be his guide and checks out any request for release of records that "doesn't feel right." For example, if a hus- band brings an authorization form for release of medical records that he says his wife signed, her signature should be checked against the signature on hospital admission forms. It could be that a divorce is in progress in such a situation, and the husband or wife is seeking medi- cal records to prove the spouse an unfit parent.

"Never release medical records because the person making the request has intimidated you," adds Teresa. "The most officious person I've dealt with was an FBI agent who told me, 'I want this record. If you don't give it to me, I'll get it myself.' I said, 'Go for it.' Later the agent called and apologized to me."

Since the employing hospital is located in a city with an air force base, Sally, Michael, and Teresa often receive requests for medical records for active duty military personnel. "We have now been told that the mili- tary can get the records they request on any active duty person," adds Sally. "We still ask for an authorization, but it is not required, since the active duty person signs away that right when he or she signs up for the military. This applies to active duty personnel on duty or on leave, but it does not include dependents of the person in the military."

Michael, Teresa, and Sally know that medical records contain informa- tion that can be used in ways not intended when the health care data were collected. They also know that the hospital that employs them can be legally liable for improper release of medical records. Therefore, they are extremely careful about always obtaining proper consent before releasing records.

From the perspective of individuals seeking medical records for their own purposes, not related to health care or the welfare of patients, Michael, Teresa, and Sally are unrelenting obstacles. From the perspective of the patients whose confidential medical records are conscientiously protected, Michael, Teresa, and Sally are performing their jobs well. From the perspec- tive of their employer, Michael, Teresa and Sally are performing their jobs well and following the laws pertaining to the release of medical records.

Medical Records A medical record is a collection of data recorded when a patient seeks medical treatment. The medical record, as used in this chapter, refers to a patient's visits to one health care facility. The health record cov- ers all of a patient's health care issues, and covers all health care facili- ties the patient may have visited. The two terms are discussed in further detail in Chapter 8. Hospitals, surgical centers, clinics, physician

176 Part Two J Legal Issues for Working Health Care Prac titioners

offices, and other facilities providing health care services maintain patients' medical records. Medical records serve many purposes:

1. They are required by licensing authorities and provide a format for tracking, documenting, and maintaining a patient's communi- cation data, both inside and outside a health care facility.

2. They provide documentation of a patient's continuing health care, from birth to death.

3. They provide a foundation for managing a patient's health care.

4. They serve as legal documents in lawsuits.

5. They provide clinical data for education, research, statistical tracking, and assessing the quality of health care.

ENTRIES

As a legal document, a patient's medical record may be subpoenaed (via subpoena duces tecum) as evidence in court. When they are conscien- tiously compiled, medical records can prevail over a patient's recollection of events during a trial. When there is no entry in the record to the effect that something was done, there is a presumption that it was not done, and when there is an entry that something was done, the presumption is that it was done. Therefore, what is omitted from the record may be as important to the outcome of a lawsuit as what is included.

Records may be kept on paper, microfilm, or computer tapes or disks. For legal protection as well as continuity of care, the following information must be recorded in a patient's record:

• Contact and identifying information: the patient's full name, Social Security number, date of birth, and full address. If appli- cable, include e-mail address, horne and work telephone numbers, marital status, and name and address of employer.

• Insurance information: name of policy member and relationship to patient, details such as certificate and group numbers, telephone numbers, copy of insurance card, Medicaid or Medicare numbers if applicable, and secondary insurance.

• Driver's license information, state, and number.

• Person responsible for payment and billing address.

• Emergency contact information

• The patient's health history.

• The dates and times of the patient's arrival for appointments.

• A complete description of the patient's symptoms and reason for making an appointment.

• The examination performed by the physician.

• The physician's assessment, diagnosis, recommendations, treat- ment prescribed, progress notes, and instructions given to the patient, plus a notation of all new prescriptions the physician writes for the patient and of refills the physician authorizes.

• X-rays and all other test results.

• A notation for each time the patient telephoned the medical facil- ity or was telephoned by the facili ty, listing date, reason for the call, and resolution.

Chapter 71 Medical Records and Informed Consent 177

• A notation of copies made of the medical record, including date copied and the person to whom the copy was sent.

• Documentation of informed consent, when necessary.

• Name of the guardian or legal representative to be contacted if the patient is unable to give informed consent.

• Other documentation, such as complete written descriptions; photographs; samples of body fluids, foreign objects, and cloth- ing in cases involving criminal investigations; and so on. All items should be carefully labeled and preserved.

• Condition of the patient at the time of termination of treatment, when applicable, and reasons for termination, including docu- mentation if the physician-patient contract was terminated before completion of treatment.

Five Cs can be used to describe the necessary attributes of entries to patients' medical records. These entries must be:

1. Concise

2. Complete (and objective)

3. Clear (and legibly written)

4. Correct

5. Chronologically ordered

Medical records should never include inappropriate personal judg- ments or observations or attempts at humor.

PHOTOGRAPHS, VIDEOTAPING, AND OTHER METHODS OF PATIENT IMAGING

In today's health care environment, it has become increasingly com- mon to record patients' images through the use of photography, videotaping, digital imaging, and other visual recordings. For example, surgeons may photograph, videotape, or otherwise record procedures used during an operation for purposes of education or review. Cosmetic surgeons and physicians who treat accident victims may want to docu- ment visually the patient's condition "before" and "after" the incident. Such images then become part of the patient's medical record, subject to the same requirement for written release as the rest of the record.

Photographing or otherwise recording a patient's image without proper consent may be interpreted in a court of law as invasion of pri- vacy. Invasion of privacy charges are most often upheld in court if the patient's image was used for commercial purposes, but such claims have also been upheld under public disclosure of embarrassing pri- vate facts . For example, "before" and "after" photographs published by a cosmetic surgeon may cause embarrassment to the patient if he or she did not give consent for the photographs to be published.

If a health care facility routinely photographs patients to document care, a special consent form should be signed stating that:

• The patient understands that photographs, videotapes, and digital or other images may be taken to document care.

• The patient understands that ownership rights to the images will be retained by the health care facility, but that he or she will be allowed to view them or to obtain copies.

178 Part Two I Legal issues for Working Health Care Practitioners

• The images will be securely stored and kept for the time period prescribed by law or outlined in the health care facility's policy.

• Images of the patient will not be released and/or used outside the health care facility without written authorization from the patient or his or her legal representative.

If the images will be used for teaching or publicity, a separate con- sent form should be used.

CORRECTIONS

Errors made when making an entry in a medical record or errors dis!=overed later can be corrected, but corrections must be made in a specific manner, so that if the medical records are ever used in a medical malpractice lawsuit, it will not appear that they were falsified. Use these guidelines when correcting errors in a client's paper medical record:

• Draw a line through the error so that it is still legible. Do not black out the information or use correction fluid to cover it up.

• Write or type in the correct information above or below the orig- inal line or in the margin. If necessary, you may attach another sheet of paper or another document with the correction on it. In this case, note in the record "See attached document A" to indicate where the corrected information can be found.

• Note near the correction why it was made (for example, "error, wrong date," or "error, interrupted by a phone call"). You can place this note in the margin or, again, add an attachment. Do not make a change in the record without noting the reason for it.

• Enter the date and time, and initial the correction.

• If possible, ask another staff member or the physician to witness and initial the correction to the record when you make it.

Since the 1996 Health Insurance Portability and Accountability Act (HIPAA) mandated the conversion of medical records from paper to dig- ital form, most medical records are now hybrids, consisting of both elec- tronic and paper documentation. The federal mandate is for all medical records to be stored electronically by the end of 2014. Methods of correct- ing electronic records should be put in place within a medical practice to coincide with software health care providers choose to use, but all meth- ods must meet qualifications specified in federal and state law.

Rule number one in correcting an electronic medical record is that the original record must be maintained. Some software systems in use in medical practices may allow for a single strike-through line through incorrect information, or a system may use different colored type- face to indicate changed information. In any case, the original record should not be completely obscured.

Adding an addendum to correct or add to the original information is the correct method of correction. An addendum is a significant change or addition to the electronic medical record.

Health care providers should have in place a policy for creating addendums to patient medical records, but typically, an addendum to a patient's electronic medical record will include the following:

a. Patient name

b. Date of service

addendum A signif icant change or addition to t he electron ic health record (EHR).

Chapter 7 1 Medical Records and Informed Consent 179

I. Define medical record.

c. Account number

d. Medical record number

e. Original report to which the addendum is to be attached.

f. Date and time of the addendum and the electronic signature of the person creating the addendum.

Examples of documentation errors that are corrected by adden- dum include: wrong dates, wrong locations, duplicate documents, incomplete documents, or other errors. The amended version must be reviewed and signed by the provider.

2. List five purposes served by a patient 's medical record.

3. As the person responsible for charting in a medical office, would you record a patient 's statement that she often feels "woozy" and thinks she has "dropsy"? Why or why not?

4. If a reconstructive surgeon wants to publish "before" and "after" photographs of patients in a brochure left in the waiting room for distribution to prospective patients, what must she do?

5. If a patient makes critical remarks to you, a medical assistant, about your physician/employer, would you record the remarks in the patient's medical record? Why or why not?

6. You are charting after a patient's office visit and you are interrupted by a telephone call. The interruption causes you to incorrectly record results of the patient's blood tests. When you discover your mistake, can you correct it? If so, how?

7. Briefly explain how corrections made to an electronic medical record differ from corrections made to a paper record.

LO 7.2 Identify ownership of medical records and determine how long a medical record must be kept by the owners.

Medical Records Ownership, Retention, and Storage OWNERSHIP

Patients' medical records are considered the property of the owners of the facility where they were created. For example, a physician in private practice owns his or her records; records in a clinic are the property of the clinic. Hospital records are the property of the

COURT CASE Loss of Medical Records

A plaintiff brought a medical malpractice suit against a hos-

pital in Massachusetts. During discovery, the plaintiff learned

that the hospital had lost his medical records. An appeals

court entered a default judgment in favor of the plaintiff

as sanction for the hospital 's loss of the plaintiff's medical

records, and the state supreme court upheld the lower

court 's decision. The supreme court stated that the missing

records, which the defendant conceded were irreparably

180 Part Two I Legal issues for Work ing Health Care Practitioners

lost, contained the only documentation of the critical time

period during w hich the alleged malpractice event occurred,

making a determination based on the evidence impossible.

A default judgment was issued in favor of the plaintiff,

since the hospital's loss of medical records was such an

egregious error.

Keene v. Brigham & Women's Hasp., Inc., 439 Mass. 223 (2003).

admitting hospital. The facility where the medical records were cre- ated owns the documents, but the patient owns the information they contain. On signing a release, patients may usually obtain access to or copies of their medical records, depending on state law. However, under the doctrine of professional discretion, courts have held that in some cases, patients treated for mental or emotional conditions may be harmed by seeing their own records. Under HIPAA, patients who ask to see and/or copy their medical records must be accommodated, with a few exceptions. If patients need clarification, records may be reviewed in the presence of a trusted health care professional, but this is not a requirement for allowing patients to see their records.

When a physician in private practice examines a patient for a job- related physical, scheduled and paid for by the patient's employer or prospective employer, those records are still the physician's property, but the employer is entitled to a copy of the record that is pertinent to the job-related exam. Medical records should never be kept in an employer's general personnel files. The patient must obtain permis- sion from the employer to release information contained in the records.

Under HIPAA, patients are entitled to access any health care infor- mation a physician generates about them, with a few exceptions.

' cs"'' •

Check Your Progress

8. How long should medical records be retained?

9. Who owns a patient's medical record?

I 0. Define doctrine of professional discretion.

doctrine of professional discretion A principle under which a physician can exercise judgment as to whether to show patients who are being treated for mental or emotional conditions their records. Disclosure depends on whet her, in the physician's judgment, such patients would be harmed by viewing the records.

I I. Are you entitled to a copy of your own medical records on request? Explain your answer.

12. If medical records are lost prior to the filing of a medical malpractice lawsuit where the records are necessary, what might result?

RETENTION AND STORAGE

As a protection in the event of litigation, records should be kept until the applicable statute of limitations period has elapsed, which gen- erally ranges from two to seven years. In some cases, this involves keeping the medical records for minor patients for a specified length of time after they reach legal age. Some states have enacted statutes for the retention of medical records. However, most physicians retain records indefinitely, since, in addition to their value as documenta- tion in medical professional liability suits and for tax purposes, the patient's medical history may be vital in determining future treatment.

As illustrated in the court case on the previous page, "Loss of Medi- cal Records," medical malpractice is impossible to prove without med- ical records.

Confidentiality and Informed Consent Since medical office personnel have a duty to protect the privacy of the patient, medical records should not be released to a third party without written permission, signed by the patient or the patient's legal representative. Only the information requested should be released.

LO 7.3 Describe the purpose of obtaining a patient's consent for release of medical information, and explain the doctrine of informed consent.

Chapter 7 1 Medical Records and Informed Consent 181

fiduciary duty A physician's obligation to his or her patient, based on trust and confidence.

Requests for release of records may ask for records concerning a specific date or time span. Records may also be requested for a spe- cific diagnosis, symptom, or body system, or for results of certain diagnostic tests. Medical records personnel should not send unsolic- ited records. They should carefully review the signed release form to ensure that the correct records are sent.

When medical records are requested for use in a lawsuit, a signed consent for the release of the records must be obtained from the patient, unless a court subpoenas the records. In this case, the patient should be notified in writing that the records have been subpoenaed and released.

ROUTINE RELEASE OF INFORMATION

Medical information about a patient is often released for the following purposes:

Insurance Claims. The medical office supplies specific requested information, but does not usually send the patient's entire medical record. An authorization to release information, signed by the patient, is required before records may be released, but most health care providers incorporate the release into the patient registration form so that information can be provided in a timely manner.

Transfer to Another Physician. The physician may photocopy and send all records, or may send a summary. The patient must sign an authorization to release records.

Use in a Court of Law. When a subpoena duces tecum is issued for certain records (the subpoena commands a witness to appear in court and to bring certain medical records), the patient's written consent to release the records is waived.

The court case, "Not Guilty of Breach of Confidentiality," illustrates that physicians who produce patients' medical records for use in court, or those who testify in court as expert witnesses, are not liable for breach of confidentiality.

As illustrated in the chapter 's opening scenario, individuals respon- sible for releasing medical information must follow procedure to protect against unauthorized release, even in the previous situations where medical records are routinely requested.

The court case, "Breach of Confidentiality Declared-Damages Upheld," determined that damages were properly awarded to the plaintiff in a suit against a nurse who released confidential medical information without authorization.

COURT CASE Not Guilty of Breach of Confidentiality

A physician cannot be sued for breach of confidentiality

when required to produce a patient's medical records for

use in court testimony.

A patient (Cruz) sued a physician (Agelides) for breach

of fiduciary duty. (Fiduciary duty is a physician 's duty to his or her patient, based on trust and confidence.) In a pre-

vious malpractice action brought by Cruz against another

182 Part Two I Legal Issues for Working Health Care Practitione rs

physician, Agelides had given a sworn pretrial affidavit and

video deposition in favor of the defending physician. The

court held that Agel ides was immune from any civil liability

action as a result of his testimony as a w itness in the

previous trial.

Cruz v. Age/ides, 574 So 2d 278 (Fla. App. 3 Dist., 1991 ).

COURT CASE Breach of Confidentiality Declared- Damages Upheld

A 20-year-old unmarried woman who lived with her parents

decided to terminate her pregnancy at the Long Island

Surgi-Center. Because her parents strongly disapproved of

premarital sex and were implacably opposed to abortion,

she did not tell them of her decision. When she arranged

for the procedure, the woman provided her cell phone

number, but told the clinic never to call her at home.

Nevertheless, a day after the abortion one of the clinic's

nurses telephoned the young woman at home and spoke

with a person she knew to be the woman's mother. Because

blood test results had been received at the center that

morning, but had not been entered in the patient's medical

record, the nurse called the patient's home to determine

(I) information about the patient's blood type, and (2) if the

patient was experiencing vaginal bleeding. The nurse did

not explicitly tell the patient's mother that her daughter had

undergone an abortion, but the mother deduced the truth

from the nurse's questions. The patient's relationship with

her parents was irreparably damaged, and she sued the clinic,

charging breaches of confidentiality, privacy, and fiduciary

duty, and seeking compensatory and punitive damages. The

center conceded liability, and the matter proceeded to trial

on the question of damages. The jury awarded the plaintiff

$65,000 for past and future emotional distress and $300,000

in punitive damages. The Surgi-Center appealed the damages

awarded, but the appeals court upheld the awards.

Randi A. }. v. Long Is. Surgi-Ctr. , 2007 NY Slip Op 06953 ; 46 A.D. 3d 74.

While Michael, Sally, and Teresa, medical records employees, are explicitly aware of the dangers of releasing confidential medical informa- tion, all health care practitioners, like the nurse in the court case, "Breach of Confidentiality Declared-Damages Upheld," also need to be con- stantly aware of protecting confidentiality of patients' medical records.

Physicians receive subpoenas for patient medical records for a variety of reasons, including accidents involving patients, workers' compensation claims, and other nonmedical-liability reasons. When this occurs, the medical office sends a photocopy of the patient's medical records to the attorney who issued the subpoena.

When a physician is sued for medical malpractice, however, respon- sibility to comply with a subpoena to produce specified medical records in court may fall to the medical office employee in charge of medical records. In that case, the person in charge of medical records should follow these guidelines:

• Check the subpoena to be sure the name and phone number of the issuing attorney and the court docket number of the case are listed.

• If a copy of the subpoena is received, verify with the issuing attor- ney that it is the same as the original in every way.

• Verify that the patient named was a patient of the physician named.

• Verify the trial date and time as listed on the subpoena.

• Notify the physician that a subpoena was received, and then notify the physician's insurance company or attorney, if so directed.

• Check all subpoenaed records to be sure they are complete, but never alter them in any way.

• Document the number of pages in the record and itemize its con- tents. Make a photocopy of the original to be submitted, if permit- ted by state law and the court.

• Offer sworn testimony regarding the record, if so instructed by the court.