Judges and juries generally regard medical records as the most trustworthy and probative piece of evidence. When introduced as independent documentary evidence, a well-documented medical record is a powerful defense to offset patient allegations that a physician was negligent in making medical decisions and providing treatment.
Full Answer
Do doctors have to keep medical records confidential?
Medical ethics rules, state laws, and the federal law known as the Health Insurance Portability and Accountability Act (HIPAA), generally require doctors and their staff to keep patients' medical records confidential unless the patient allows the doctor's office to disclose them.
Who can access medical records in a wrongful death case?
A patient’s personal representative can also collect their medical records, which is especially useful in cases of wrongful death. The government and law enforcement also have the right to access medical records in certain situations.
Can a doctor alter a medical record to prevent malpractice?
There is no question that medical malpractice cases with great merit have been lost because a doctor altered a medical record that prevents the exposure to medical malpractice. Conversely, a lot of doctor have altered medical records and got caught, often changing a difficult case into one that is indefensible.
Can my client’s treating physicians opine without pre-incident medical records?
Your client’s treating physicians have foundation, and are fully qualified and entitled to opine on causation of your client’s injuries with or without pre-incident medical records. Also, there are ways of bolstering these treaters’ foundation by informing them of the past medical records, without converting them into retained experts.
What amendment protects privacy of medical records?
Medical privacy: from the 4th Amendment to HIPAA.
What qualifies as protected health information?
Protected health information (PHI), also referred to as personal health information, is the demographic information, medical histories, test and laboratory results, mental health conditions, insurance information and other data that a healthcare professional collects to identify an individual and determine appropriate ...
What would be a violation of HIPAA?
Releasing Patient Information to an Unauthorized Individual Disclosing PHI for purposes other than treatment, payment for healthcare, or healthcare operations (and limited other cases) is a HIPAA violation if authorization has not been received from the patient in advance.
Which situations allow a medical professional to release information?
Doctors are required to release medical information even without the patient's written consent when they have concerns that the child or others may be at risk for immediate harm. Also, doctors must release information when ordered by a court.
What is not protected health information?
PHI only relates to information on patients or health plan members. It does not include information contained in educational and employment records, that includes health information maintained by a HIPAA covered entity in its capacity as an employer.
What health information is not protected by HIPAA?
The Privacy Rule excludes from protected health information employment records that a covered entity maintains in its capacity as an employer and education and certain other records subject to, or defined in, the Family Educational Rights and Privacy Act, 20 U.S.C. §1232g. De-Identified Health Information.
What are 3 types of HIPAA violations?
Top 10 Most Common HIPAA ViolationsKeeping Unsecured Records. ... Unencrypted Data. ... Hacking. ... Loss or Theft of Devices. ... Lack of Employee Training. ... Gossiping / Sharing PHI. ... Employee Dishonesty. ... Improper Disposal of Records.More items...•
What are 3 common HIPAA violations?
The 5 Most Common HIPAA ViolationsHIPAA Violation 1: A Non-encrypted Lost or Stolen Device. ... HIPAA Violation 2: Lack of Employee Training. ... HIPAA Violation 3: Database Breaches. ... HIPAA Violation 4: Gossiping/Sharing PHI. ... HIPAA Violation 5: Improper Disposal of PHI.
What are the 5 most common violations to the HIPAA privacy Rule?
The five most common HIPAA compliance issues, as compiled by the HHS' Office for Civil Rights: Impermissible uses and disclosures of protected health information. Lack of safeguards of protected health information. Lack of patient access to their protected health information.
When can doctors break confidentiality?
Doctors can breach confidentiality only when their duty to society overrides their duty to individual patients and it is deemed to be in the public interest.
What is the one exception where records can be released without patient consent?
You may only disclose confidential information in the public interest without the patient's consent, or if consent has been withheld, where the benefits to an individual or society of disclosing outweigh the public and patient's interest in keeping the information confidential.
What are rights of patient confidentiality?
The patient has the right to demand that all information, communication and records pertaining to his care be treated as confidential.
Is It Illegal to Alter Medical Records?
Altering a medical record is a crime and can also be used against doctors in medical malpractice cases. However, it is not illegal for medical prof...
What is a Medical Record?
A medical record is essentially a summary of your health history. Your primary care physician has a medical record for you, but so does every other...
Who Can Access My Medical Record and Where Is It Kept?
Although patients have the right to access a copy of their medical records, original documents belong to the healthcare facility that created them....
What are the rights of individuals regarding their medical records?
These rights are pursuant to the Health Insurance Portability and Accountability Act (HIPAA) as well as state laws. However, there are a number of situations in which medical records may legally be shared with others.
Who can access a minor patient's information?
Access is also provided pursuant to an individual’s request to supply information to a third party, to guardians, to a minor patient’s parents and to a person or estate’ s personal representative .
How do healthcare providers share confidential information?
Another way that healthcare providers may share confidential health information is to state that they intend to share the information with another individual or entity in the healthcare provider’s professional judgment that such disclosures are in the best interests of the individual. If the patient does not object, his or her acceptance is assumed. Informal permission can be granted that allows covered entities to disclose information to the patient’s family, relatives, friends or other individuals whom the patient has identified as being involved in his or her care or responsible for payment for care or for locating such individuals.
Why do healthcare providers disclose health information?
Healthcare providers and plans can disclose protected health information in order to treat the patient, for billing purposes and to complete its own healthcare operations. They can also do so for these purposes for other healthcare providers or plans.
Why do we need to share health information?
In order to acquire information and payment of premiums, to provide for coverage and to seek reimbursement, health information must also be shared. Information may sometimes be shared with other individuals than these healthcare entities.
Does HIPAA give you access to your own records?
HIPAA provides that individuals generally have a right to access their own healthcare records. There are exceptions even to this most general rule, such as not having a right to access psychotherapy notes, records being prepared for a lawsuit or information that could jeopardize the safety or health of the patient or others.
Can a power of attorney be used for emergency care?
However, even in emergency situations, healthcare providers are only permitted to discuss the information that is necessary for the other person to have in order to make decisions about care or payment for care.
Why are medical records important?
Our medical records are vitally important for a number of reasons. They're the way your current doctors follow your health and health care. They provide background to specialists and bring new doctors up-to-speed. Your medical records are the records of the people with whom we literally entrust our lives. While you have certain rights regarding ...
What to do if you find an error in your medical records?
If you find an error in your medical records, you can request that it be corrected. You can also ask them to add information to your file if it's incomplete or change something you disagree with. For example, if you and your doctor agree that there's an error such as what medication was prescribed, they must change it.
How long does it take to get a copy of your medical records?
2 In most cases, the copy must be provided to you within 30 days.
What is HIPAA law?
It may seem strange, but the answers to these questions lie in the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA applies not only to health insurance but privacy and medical records issues as well.
What is the act that regulates how our health information is handled to protect our privacy?
HIPAA, the same act that regulates how our health information is handled to protect our privacy, also gives us the right to see and obtain a copy of our records and to dispute anything we feel is erroneous or has been omitted. 1
How long does it take to change a doctor's record?
In most cases, the file should be changed within 60 days, but it can take an additional 30 days if you're given a reason. 4 .
Can you get all your medical information?
In a few special cases, you may not be able to get all of your information. For example, if your healthcare provider decides something in your file might endanger you or someone else, they may not have to give you that information.
Why is a well documented medical record important?
When introduced as independent documentary evidence, a well-documented medical record is a powerful defense to offset patient allegations that a physician was negligent in making medical decisions and providing treatment.
Why is a medical record important?
A detailed medical record is invaluable for refreshing a physician’s recollection of the patient’s history and physical findings. It also prompts a physician’s memory about interactions with the patient and earlier thought processes.
Why are progress notes important in healthcare?
Accurate progress notes will facilitate prompt payment and avoid unnecessary disputes over the level of care rendered and the amount of reimbursement owed to the provider.
How to contact the Department of Patient Safety and Risk Management?
For further assistance, contact the Department of Patient Safety and Risk Management at [email protected] or (800) 421-2368. The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome.
Why is a medical record considered credible?
In the event of civil litigation, the medical record is considered reliable and credible because it was created during the normal course of business by the physician, hospital, advanced practice provider, or clinic personnel at or near the time of the event in question. Judges and juries generally regard medical records as the most trustworthy and probative piece of evidence. When introduced as independent documentary evidence, a well-documented medical record is a powerful defense to offset patient allegations that a physician was negligent in making medical decisions and providing treatment.
Why do patients file grievances?
Patient grievances may be filed based on an individual’s faulty recollection of events, or a failure to understand the course of treatment or the underlying reason that an adverse consequence occurred. When a medical record is well documented, many allegations are often readily resolved—frequently before a formal administrative process is even initiated. Should the action move forward, physicians with appropriate documentation are better able to support their decisions and treatment plans with greater confidence of achieving a favorable outcome.
What is an important safeguard in the office?
An important safeguard in the office is a procedure that requires the personal approval of the patient’s treating physician or the office manager before medical information from the patient’s record can be copied or released.
Why is it important to learn the physician’s perspective before they give deposition or trial testimony?
It is important to learn the physician’s perspective before they give deposition or trial testimony, to gauge their willingness to analyze causation opinions. Treaters may offer causation opinions without reviewing prior medical records. Opinions of experts must be based on proper foundation.
How to keep out treating physicians' causation opinions?
You may have encountered a recent shift in defense strategies to keep out treating physicians’ causation opinions. This hinges on whether the treating physician has access to the patient’s prior medical records, medical history, and accident facts. If the treater has not seen the past medical records, the defense will argue the treater cannot exclude prior conditions or other causes, and thus cannot say whether the incident caused injury. If the treater has been given the prior medical records, then the defense will cry foul and say the treater is now a retained expert, who was not properly disclosed. Thus the defense tries to create a “Catch-22” to block the treater from offering causation opinions.
What is a non-retained expert?
A treating physician may be designated as a non-retained expert. Unlike a retained expert who receives information relevant to the case for the purposes of litigation, a non-retained expert offers opinions based on “independently acquired” facts, e.g., knowledge acquired through their experience treating the patient. A non-retained treating physician may testify as to “facts acquired independently of the litigation, that is, facts acquired in the course of the physician-patient relationship and any other facts independently acquired.” ( Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 140, citing, Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39.) [A non-retained treating physician may offer opinions regarding plaintiff’s medical conditions and the cause of plaintiff’s injuries. The physician’s admissible opinions “ may well include opinions regarding causation and standard of care because such issues are inherent in a physician’s work .”] ( Schreiber, supra, 22 Cal.4th 31, 39, emphasis added.)
How to bolster a treating physician's testimony?
If you want to bolster or expand your treating physician’s testimony by providing the physician with additional records, there are several routes to take. First, you can designate them as a retained expert in your expert disclosure. This will fulfill the letter of Dozier and related cases and permit opinions based on wide foundations. However, there are drawbacks. A treating physician is usually not under the control of the party offering their opinion. Sometimes it is hard to know what they will say on the stand or if they will have an opinion at all. It is therefore difficult to fulfill the requirement of retained expert disclosure, to summarize the expert’s opinions.
What is a treating physician?
Treating physicians (“treaters ”) can also offer the opinion that a given event caused injury to your client. Most often the treater will draw logical inferences based on the type of incident and the timing of the patient’s complaints and symptoms. When the plaintiff’s own doctor says that the incident likely caused plaintiff’s injuries, this can be very persuasive opinion evidence to a jury.
What is medical opinion?
Medical opinions, including opinions on the diagnosis and cause of injury, are the exclusive domain of the medical profession. Medical doctors are qualified (in fact, are the only ones qualified) to offer expert testimony relevant to medical causation. (See, Salasquevara v.
Can you use touch to treat a personal injury?
Touch devices users can use touch and swipe gestures. In most personal injury cases, your client’s treating physicians are a powerful resource. They have direct experience with your client and can verify the client’s injuries, course of necessary treatment, diagnoses, prognoses, and future treatment. Treating physicians (“treaters”) ...
What happens when a patient brings a personal injury claim?
If the patient brings a personal injury or workers' compensation claim, in which his health is a major issue in the case, the doctor may come to court and testify about the patient's injuries.
What happens if a patient has a traumatic injury?
If the patient has suffered some traumatic injury and cannot make medical decisions for themselves, the doctor may discuss the patient's medical information with their next of kin. The family member will often need this information so they can make an informed decision about the next steps in medical treatment.
Do doctors have to keep medical records confidential?
Medical ethics rules, state laws, and the federal law known as the Health Insurance Portability and Accountability Act (HIPAA), generally require doctors and their staff to keep patients' medical records confidential unless the patient allows the doctor's office to disclose them.
Is medical privacy a federal law?
Medical privacy laws are varied and complex, particularly since they are addressed by both state and federal laws. If you're concerned that your doctor shared patient information without your permission, in an improper manner, you should consider speaking with an experienced health care attorney today.
Can health care providers share personal medical records?
However, health care providers generally can 't share personal medical information and records with providers who aren't involved in the patient's care, unless all personal identifiable information is removed. Thank you for subscribing!
Can a doctor share medical records without permission?
However, there are a variety of circumstances under which a doctor may share the information in medical records and personal medical information without permission from the patient. The following are some examples.
Is medical information considered sensitive?
Information in medical records is considered highly private and sensitive . But are there ever instances where a doctor may share patient information without their permission? It depends, but generally only under extraordinary circumstances.
What to do if your medical record is incorrect?
Corrections. If you think the information in your medical or billing record is incorrect, you can request a change, or amendment, to your record. The health care provider or health plan must respond to your request. If it created the information, it must amend inaccurate or incomplete information.
Who has the right to access your medical records?
Access. Only you or your personal representative has the right to access your records. A health care provider or health plan may send copies of your records to another provider or health plan only as needed for treatment or payment or with your permission.
What is a psychotherapy note?
Psychotherapy notes are notes that a mental health professional takes during a conversation with a patient. They are kept separate from the patient’s medical and billing records. HIPAA also does not allow the provider to make most disclosures about psychotherapy notes about you without your authorization.
What is the privacy rule?
The Privacy Rule gives you, with few exceptions, the right to inspect, review, and receive a copy of your medical records and billing records that are held by health plans and health care providers covered by the Privacy Rule.
What happens if a provider does not agree to your request?
If the provider or plan does not agree to your request, you have the right to submit a statement of disagreement that the provider or plan must add to your record.
Can a provider deny you a copy of your records?
A provider cannot deny you a copy of your records because you have not paid for the services you have received. However, a provider may charge for the reasonable costs for copying and mailing the records. The provider cannot charge you a fee for searching for or retrieving your records.
Does HIPAA require health care providers to share information with other providers?
The Privacy Rule does not require the health care provider or health plan to share information with other providers or plans. HIPAA gives you important rights to access - PDF your medical record and to keep your information private.
What is the duty of a health care provider?
A health care provider’s “duty to warn” generally is derived from and defined by standards of ethical conduct and State laws and court decisions such as Tarasoff v. Regents of the University of California. HIPAA permits a covered health care provider to notify a patient’s family members of a serious and imminent threat to the health or safety ...
What is HIPAA notification?
HIPAA permits a covered health care provider to notify a patient’s family members of a serious and imminent threat to the health or safety of the patient or others if those family members are in a position to lessen or avert the threat. Thus, to the extent that a provider determines that there is a serious and imminent threat ...
Does HIPAA protect against physical harm?
Thus, to the extent that a provider determines that there is a serious and imminent threat of a patient physically harming self or others, HIPAA would permit the provider to warn the appropriate person (s) of the threat, consistent with his or her professional ethical obligations and State law requirements.
How long does an outgoing MD have to keep medical records?
With regard to records retention by the Outgoing MD, HIPAA requires retaining policies and procedures, including patient authorizations (discussed further below), for six years (45 CFR 164.530 (j) (2)); as well, there are California statutes requiring retention of medical records; and there are reasons for the Outgoing Physician to retain a copy of medical records for review in case of a negligence action.
When we advise clients with respect to taking patient records, charts, lists, or databases with them on departing a?
When we advise clients with respect to taking patient records, charts, lists, or databases with them on departing a practice, we are sensitive to the nuances of the outgoing physician’s departure. For example, a physician might:
What does CMB mean in closing a medical practice?
A physician terminating a physician-patient relationship must give notice to the patients; otherwise, there is patient abandonment. The California Medical Board (“CMB”), in Closing Your Medical Practice, provides guidance to physicians regarding the “closure of or departure from a medical practice office.”.
When did the URMC settlement happen?
The settlement is in response to a data breach that occurred in the spring of 2015, when a URMC nurse practitioner gave a list containing 3,403 patient names, addresses, and diagnoses to her future employer, Greater Rochester Neurology (“GRN”), without first obtaining authorization from the patients. On April 21, 2015, GRN used the information to mail letters to the patients on the list informing them that the nurse practitioner would be joining the practice and advising them of how to switch to GRN.
What form should be included in a letter to a new treating physician?
To facilitate the transfer of medical records to the new treating physician, an authorization form should be included in the letter.”
How to send outgoing MD?
“The California Medical Association (CMA) recommends, if possible, that letters be sent by certified mail, return receipt requested , and that a copy of the letter with the return receipt be kept. To inform inactive patients or those who have moved away, the CMA also recommends placing an advertisement in a local newspaper.”
What is ownership in medical records?
For example, the California Medical Board states in its webpage on Corporate Practice of Medicine: “Ownership is an indicator of control of a patient’s medical records, including determining the contents thereof, and should be retained by a California licensed physician.” This suggests that any impression that the MSO or PA is in charge of medical records creates enforcement peril.
What Does HIPAA Say About Medical Record Destruction?
HIPAA regulations are very clear about when medical records should be destroyed and what kinds of medical records must be destroyed.
What records are required to be destroyed under HIPAA?
These include patient charts and medical records as well as any other patient health information (PHI) that includes personal and confidential data.
How to clear PHI?
PHI in electronic media may be cleared by overwriting it, purged by degaussing or exposing the media to a magnetic field, or otherwise destroyed by disintegration, pulverization, melting, incinerating, or shredding.
What is the job of a provider?
As a provider, it’s your job to secure any information that is on HIPAA’s list appropriately and destroy it according to either HIPAA regulations or your state regulations.
Is medical record destruction a HIPAA violation?
Medical record destruction is your responsibility under HIPAA. Partnering with an experienced data destruction specialist will ensure that you’re compliant with regulations and doing your best to protect your patients’ privacy.
Is it legal to destroy medical records?
If your company collects and stores medical records, then you know that it’s your legal responsibility to secure those records to protect your patients’ privacy. Likewise, medical record destruction is something that’s mandated by HIPAA.
Can you keep PHI in opaque bags?
They also state that it’s acceptable to maintain PHI in opaque bags in a secured area while it waits for destruction. The key is that any medical records you get rid of must be destroyed in a manner that prevents them from being reconstructed or otherwise accessed.
Retention
Administrative Actions
Professional Liability Actions
Alterations
Copying
- Beyond patient care, health records serve other vital functions that are integral to the practice of medicine. For example, billing audits—especially by CMS—require clear documentation demonstrating medical necessity, the nature and scope of the services rendered, and sufficient justification for the billing code utilized. Accurate progress notes will facilitate prompt payment …