An internet television program that explores the intersection of medicine and the law.

Patient Records Requests: What You Need to Know

By Richard J. Rymond to EMR/EHR

Description

Patient Records Requests: What You Need to Know

Our guest on Healthcare Matters is Richard J. Rymond, an attorney at Reminger Co., LPA, who specializes in in medical, dental and other forms of professional, commercial and general liability. He is the Dental Liability Practice Co-Chair at Reminger, as well as an assistant professor at the Case School of Dental Medicine and a frequent speaker on risk management programs for physicians, dentists and allied health professionals. Join us as we talk with Mr. Rymond about what to do (and what NOT to do) when receiving a records request from a patient.

Watch our full interview with Richard Rymond, or view each portion separately at the links below.

  1. The Right Response to a Records Request
  2. How to Respond to a Records Request from a Third Party
  3. Original Records or Copies: What to Provide
  4. Should You Review Records before Providing Them?
  5. Consulting with Colleagues on a Records Request
  6. Records Requests from Patients Who Owe for Services
  7. Paper Records versus Electronic Health Records
  8. The Number One Takeaway for Physicians on Records Requests
  9. Patient Records Requests: What You Need to Know

Transcript

Mike Matray: Hello and welcome to Healthcare Matters, the Internet television program that explores the intersection of medicine and the law. I’m your host, Mike Matray, and today’s guest is Richard Rymond. Richard is an attorney at the Reminger Law Firm in Cleveland, Ohio where he is focused in medical and dental malpractice liability, commercial liability, professional liability, general liability and product liability defense litigation. Welcome to Healthcare Matters, Richard.

Richard Rymond: Thank you. Thanks for having me.

Mike Matray: Today we’re going to discuss how to respond when facing a medical liability claim and you receive a records request. Could you walk us through how to initially respond when facing a records request?

Richard Rymond: So most importantly when a physician receives a request for records, the physician needs to respond to that request. Typically the request will be for a complete copy of the chart, and that’s what should be provided.

Mike Matray: Now, when facing a records request, is there anything specific a healthcare provider should not do?

Richard Rymond: Well, the most important bit of advice that we can give is don’t panic. There may be a temptation for the physician to review the chart to make sure it’s complete, that everything that ought to be in the chart is in the chart and the physician might be reviewing the chart decide, “Gee, I should’ve added this,” or “I should have added that,” or “This shouldn’t be in there,” or “That shouldn’t be in there.” Any change that the physician makes to the chart before producing it, may expose the physician to a claim for spoliation of evidence that can give rise to a claim for punitive damages. It can also jeopardize insurance coverage in some circumstances. So the physician should promptly, courteously, professionally respond to the request and produce exactly what is requested.

Mike Matray: Okay, that’s one thing that a physician shouldn’t do. Are there any other specific things that a healthcare provider should not do when faced with a records request?

Richard Rymond: Sure. The healthcare provider should not ignore the request. A prompt response, courteous response and a complete response is in order. If the physician ignores the request or if his response is perceived as being too slow, that could give rise to a higher index of suspicion concerning the underlying care.

Mike Matray: Is there any difference in response if the record request comes from a third party, another healthcare provider, or a lawyer?

Richard Rymond: The only consideration here is whether the physician has received an appropriate HIPAA- compliant authorization signed by the patient. If the patient requests the records, the patient is entitled to the records. If a representative of the patient requests the records along with the requisite HIPAA-compliant authorization, the records should be produced. A word of caution here though, at least in Ohio, we’ve seen a situation where the physician receives a subpoena for records. The physician believes that, gee, they have to respond. This is a subpoena. It has a legal authority. In point of fact, absent an authorization signed by the patient or absent an order signed by a judge, which is different from a subpoena in most instances, the physician should withhold producing the records. When in doubt, contact your insurance company representative, contact your lawyer.

Mike Matray: Let’s say that the patient and his or her attorney request the original records. Should the physician receiving the request send those original records?

Richard Rymond: So we never recommend producing the original records. Once the original records are produced, of course the physician no longer has control over them. And somebody else may inadvertently make a change to them, write something in the margin, misplace them. For that reason, we always recommend producing a copy of the chart rather than an original. Sometimes the original chart contains information which is color-coded. A lot of physicians for example with missed or broken appointments will write that in in red if it’s a handwritten chart. And I think some of the computer systems, the electronic records, will do the same. In instances where there’s any color-coding to a chart, where colors have significance, we would recommend producing a color copy of the chart.

Mike Matray: Okay. Prior to turning over those records, should the physician review them prior to executing the request?

Richard Rymond: So my view is that they should. By the way, I should have perhaps mentioned it earlier. There may be a temptation on the part of the physician who receives the records to reach out to the person who’s requested the records or reach out to another healthcare provider who they know is involved in the patient’s care. They shouldn’t do that. They should however review the records to make sure they’re complete.

Sometimes records, for whatever reason, may contain things that don’t belong in the record, perhaps a note from another patient’s chart or some other patient identifying information simply because it was misfiled. Sometimes when there’s a request for records, it’s because the patient has experienced some sort of complication associated with their care. In those instances, the physician may have consulted with an attorney or may have consulted with their professional liability insurance carrier and there may be notes concerning those consultations in the chart. Those should not be produced. Those are privileged, and if they are inadvertently produced, that can actually result in a waiver of the privilege, which we never want to see. Again, when in doubt, talk to your attorney, talk to your insurance company.

Mike Matray: Let’s say a physician receives a request for records. Is it beneficial or even permissible for the physician to reach out to his or her colleagues, who may also treat the patient, in an attempt to figure out what initiated the request?

Richard Rymond: Short answer is no. Typically when there’s a record request, it’s at the conclusion of any care that may be involved. So frequently physicians will have authorization from patients to consult with other healthcare providers, but typically that is for the singular purpose of providing healthcare. Once the care is concluded, there is no legitimate reason to consult with other healthcare providers. And that in and of itself may be deemed a HIPPA violation.

Mike Matray: Okay. We’ve talked about how this is really the patient’s records, but let’s say the patient is in arrears or hasn’t paid for medical services. Is it still the patient’s right to see their records if they request it?

Richard Rymond: There actually are some professional advisory opinions on the subject and while the temptation might be to withhold producing records until the patient account is paid, that should not be done. The patient is entitled to their records. There is an independent question of whether the healthcare provider can charge a fee for copying of records. I’ve probably seen it a hundred times in my practice, where the healthcare provider tries to dissuade the requester from following up on the request by charging a substantial fee. Two hundred dollars for a five page chart for example. Most states, certainly Ohio, has a statute, which limits what can be charged for the duplication of the chart. And while the healthcare provider may want to get prepayment for the duplication of the chart, there are risk management considerations that might dictate against making that request.

Mike Matray: The United States healthcare system has spent the last several years migrating from paper records to electronic medical records. Is there a difference between how one should treat an electronic medical record as opposed to a traditional paper record?

Richard Rymond: Well, there’s absolutely no difference. When a patient requests the complete chart, the patient is entitled to the complete chart no matter what form it’s in, whether it’s a handwritten health history form that appears in a paper chart, an electronic health history form that appears in a digital chart, the patient is entitled to the complete chart. Sometimes I know with some of the electronic records systems there’s different buttons that can be pushed that might result in a different print out of what’s being produced, and the short answer though is that everything needs to be produced. When in doubt, again, consult with your attorney, consult with your insurance carrier.

Mike Matray: As an attorney who’s handled many medical liability allegations, what is the one thing you would stress regarding how to handle a records request?

Richard Rymond: That’s an easy question and we covered it previously, but it bears repeating. Never ever, ever change the record in any manner whatsoever before producing it in response to a request for your records. That means, don’t make an alteration even though it is intended to clarify, even though it’s being made in good faith, just don’t do it. It exposes the physician to new and independent claims that may have nothing to do with the quality of the care provided.

Mike Matray: Excellent. Well, thank you for coming on Healthcare Matters, Richard. It’s been a fantastic discussion. Thank you.

Richard Rymond: Thank you for having me.

Healthcare Matters is brought to you by Cunningham Group, the medical malpractice insurance specialists.