Patients accessing ED records: Liability for physicians?
Don't act like you have something to hide
A growing number of hospitals are allowing patients to view their own medical records electronically. Does this increase liability risks for emergency physicians?
Probably not, says Helen Oscislawski, a health care attorney at the Lawrenceville, NJ office of Fox Rothschild. "If the patient already believes that there is malpractice involved, it shouldn't really make a difference," she says. "If the patient does bring a med-mal lawsuit, records will be subpoenaed anyway."
Patients already have a legal right to access their medical information under federal law, and under certain states' laws, Oscislawski notes.
In addition, most ED patients do not have the medical or nursing training that would allow them to conclude, based on the medical record, that a provider was negligent or caused them injury, says Chris DeMeo, a health care attorney at McGlinchey Stafford in Houston, TX.
"Being open with patients in this regard may actually limit potential claims," says DeMeo. Refusing to show the patient the medical record or being defensive about the situation invariably leads to the impression that the health care provider is trying to hide something, which increases the feelings of suspicion and resentment that often fuel lawsuits, he says.
In addition, a patient's impressions of negligence and proximate cause are usually inadmissible, says DeMeo. "Being defensive about allowing the patient to see the record would reflect poorly on the provider, whereas being transparent and addressing any concerns the patient has would give the record a certain reliability because the patient has had a chance to review it."
Limit potential problems
ED nurses and physicians should be made aware of the possibility that patients may access their records, Oscislawski suggests. "There should be some discussion as to how things should be written in an objective matter, " she says. "It shouldn't impact clinical judgment or what is recorded, but clinicians should be mindful that patients are going to be reading this."
Since the medical record is a means of memorializing the care received by the patient, it should be accurate and explain what was done and why, as clearly as time and circumstances allow, says DeMeo. "The medical record may be the only or best evidence for the defense two or more years after the encounter," he says. "So it should be something that, as much as possible, can stand on its own."
If litigation occurs, a physician will be judged by how they treated the patient, both as a patient and as a person, adds DeMeo. "Reports by the patient that they were not allowed to see their record or that their concerns were not taken seriously will undermine the defense," he says.
With this in mind, what should be done if the ED patient disagrees with what is documented or perceives that the record is incomplete? This may raise questions in the patient's mind, says DeMeo.
Many EDs, for example, use electronic template charting, which can be confusing to someone who does not deal with it on a regular basis. The form may have entry points for numerous system reviews, many of which are non-contributory to the patient's presenting complaint and/or are normal on assessment. Some ED physicians may get into the habit of simply leaving these data points blank, even though they were assessed, because they are not pertinent to the reason the patient is in the ED, says DeMeo.
"A patient who sees that a 'GI,' 'CVS,' or 'Integ' assessment is left blank may be left with the wrong impression that these systems were not examined by the physician," he says.
This misconception is exacerbated by the fact that many patients may not know what a gastrointestinal, cardiovascular or skin assessment entails, and thus they may not realize that they actually received them, says DeMeo.
To address this, the ED physician should comply strictly with guidelines for filling out the forms, which typically require a backslash or other mark indicating that the system was reviewed but was negative, or a check mark in a box that states systems were reviewed but were negative except as documented, DeMeo says.
Similarly, a narrative note may seem terse to a patient if several systems are not mentioned because they were reviewed but deemed normal or otherwise non-contributory.
Again, DeMeo recommends a simple notation that the systems were assessed but were negative except as set out in the record. "This will assist the physician in explaining to the patient that an assessment was done even if the results are not written out in the record," he says.
In addition, allowing the patient to review the medical record while the ED physician is available to answer any questions reduces the risk of confusion, adds DeMeo.
Must you amend?
You are not mandated to amend the ED record just because a patient says it's inaccurate. "There are procedures that HIPAA spells out with regard to what to do when a request for amendment is received, including having to respond within a certain specified period of time, and if the request is denied, a reason why must be given," says Oscislawski.
She advises asking patients to put the request in writing, and explain what the inaccurate information is. Give a copy of the amendment request to the ED physician for a response within 10 days. "The request should be submitted to a specified reviewer, so that changes are not made ad hoc," she adds.
The baseline assumption should be that the record is accurate, underscores Oscislawski. "Not every patient may be happy with certain information being in their record, but if it reflects the information collected at the time, then the patient's desire to simply have it removed may not be a sufficient reason to make the change," she says.
"The viewing of something they believe is inaccurate, without any additional basis to show that the entry is inaccurate, will not likely to lead to a lawsuit that could be maintained or that would result in any real damages," says Oscislawski.
The only people authorized to make entries in the medical record are those health care providers who actually treated the patient, notes DeMeo. "If the record actually contains an objectively verifiable mistake, it should be corrected so that the medical record is accurate," he says.
For example, if the patient's gender or ethnicity is documented incorrectly, or the time or date of the encounter is wrong, it should be corrected according to the error correction policies of the hospital.
In the majority of situations, however, assuming the patient does not have the training to dispute the interpretation of an electrocardiogram or lab test result, the disagreement would pertain to the history provided by the patient.
If the alleged mistake is pertinent to the patient's assessment, the original notation should not be changed, says DeMeo, but the patient's comment should probably be noted. For example, if the patient tells the physician that the history taken by the triage nurse was inaccurate, rather than the triage nurse changing what he or she wrote, the physician should document "Triage nurse noted X, patient reports Y to me."
Similarly, if the patient confronts the provider who made the alleged mistake, the original notation should not be changed, but the provider should note the new or different information provided by the patient.
The most neutral way to make such a note would be to document it, noting in the record what the patient reports, says DeMeo. "At some point, the physician or nurse's skills in identifying an unreliable patient may also come into play, to be documented and treated accordingly," he adds.
In extreme situations, hospital risk management may need to get involved and have the patient write out their version of events to be placed in the patient's file, although not in the medical record. "In this manner, the patient's concerns are documented for the record, but the documentation of the treatment is still controlled by the physician and nurses," DeMeo says.
Sources
For more information, contact:
- Chris DeMeo, McGlinchey Stafford, 1001 McKinney St., Ste 1500 Houston, TX 77002. Phone: (713) 335-2132. Fax: (713) 520-1025. E-mail: [email protected]
- Helen Oscislawski, Fox Rothschild, Princeton Pike Corporate Center, 997 Lenox Drive, Building 3, Lawrenceville, NJ 08648-2311. Phone: (609) 895-3310. Fax: (609) 896-1469. E-mail: [email protected].
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