Marcia Frellick

March 04, 2016

LAS VEGAS — If you know how your health organization defines a patient medical record and where to find the separate pieces of that record, you can protect yourself in a malpractice suit when an attorney asks for that record, attorneys Elana Zana, JD, and Re Knack, JD, said here at the Healthcare Information and Management Systems Society 2016 Conference.

Both Zana, who specializes in healthcare law and health information technology, and Knack, who specializes in healthcare law and insurance, are attorneys at Ogden Murphy Wallace in Seattle.

Since health records became electronic, their scope has ballooned, Knack explained. If a patient's record is requested from a health system, no longer can a single file folder be copied. Instead, paper and online lab results and records must be gathered from different storage areas. And if a health system has merged with or been bought by another entity, there are even more storage areas to consider.

Knack provided an example of the complexity of the issue. A surgeon comes out of the operating room and dictates an "op note," which is then transcribed. The surgeon might later go in and edit the op note, so now there are two written transactions and one audio transaction related to this note.

"Most people in health organizations will say that the only piece that is part of the medical record is the final op note, not earlier drafts. If you define your medical record to include only final reports, then you are safe in not producing the audio tape and the draft," she said. However, if that is not your definition, you put yourself at risk by not providing all related material, she added.

Knack pointed out that any information that exists about a patient's care — from a scheduling book to a phone message — can be part of a patient's record and is fair game in the scope of a lawsuit.

Providers should be aware that when a medical record is produced, it does not look like what you see on the screen, she said. Instructions embedded in the electronic health record don't show up in the paper report as they do on the screen.

For instance, an alert that a patient requires special accommodation when he or she comes for a visit could appear on every page of an electronic record. However, when printed, such information might be buried at the back of the report, with the demographics data.

To a jury, it might appear that accommodating special needs is not a priority to you. The only way to show that you care about the needs of your patients is to capture screen shots of the alerts, she said.

In addition, doctors can be tripped up by automatically repopulating boilerplate language, Knack told Medscape Medical News. A mistake can be repeated over and over, and "that may get in front of a jury. You need to be mindful about not being too fast or too clever but just recording what you did in the visit," she explained.

Rules on Sending Patient Information

Although electronic health records have led to advances in medicine, they have also introduced legal challenges. One such challenge is what to do when a patient asks for his or her own record.

"Many of my clients, which are primarily hospital and provider groups, are seeing an increase in requests for records from attorneys in preparation for litigation," said Zana. "We are also seeing attorneys threatening lawsuits for the failure of these providers to produce the records" in the manner requested.

Some patients will ask for their records on a USB key (an encrypted one can be expensive) or on a CD (some laptops don't have that capability). In such cases, it is important to ask patients whether they really need them in the manner requested, or whether a less expensive or different method would be acceptable, Zana said.

The Health Insurance Portability and Accountability Act requires that if a patient requests information retained in an electronic format, it must be provided in the form and format requested, if it is "readily producible," she explained. "If it's not in a readily producible format, then we can discuss with the individual and come to an agreed-upon format."

In fact, information can be sent by regular unencrypted email if that is what the patient requests, which surprises a lot of physicians, she said. However, the patient must be informed of the risks.

"The Office for Civil Rights is pretty clear in their recent guidance that this is allowed, and that unless there's a good reason not to, you should follow it," she added.

But Zana said she strongly recommends that providers have their patients sign a waiver to make sure they have proof that the patient is aware of the risks of sending unencrypted information by email.

The Office for Civil Rights "clarified that it is about the capability of sending information to the patient, not the provider's willingness. It's time providers looked at methods of easily transferring this information to patients," she said.

Requests for information are often negotiable, Knack pointed out. "Just because someone asks for the universe, you don't have to give them the universe, but you have to tell them the universe exists. Then you can figure out how to limit it," she said.

Ms Zana and Ms Knack have disclosed no relevant financial relationships.

Healthcare Information and Management Systems Society (HIMSS) 2016 Conference: Session 76. Presented March 1, 2016.

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