Most recently, patients and plaintiff’s attorneys have been requesting medical records through a different route, either the Michigan Consumer Protection Act or the Freedom of Information Act. The copying and requesting of medical records is one of the most frequent problems physicians within the Genesee County Medical Society encounter. I receive a weekly phone call from a physician in the Genesee County Medical Society regarding medical records. These telephone calls are welcomed, but, it is hoped this article will aid the members of the Genesee County Medical Society in answering the basic questions about production of medical records. Please be aware that Cline, Cline & Griffin and this author welcome phone calls from any physician regarding medical records or other legal questions.

Michigan Consumer Protection Act and Freedom of Information Act Do Not Require Production of Records

Recently, patients and plaintiff’s attorneys have been requesting medical records be produced pursuant to the Michigan Consumer Protection Act and also the Michigan Freedom of Information Act. The courts have ruled that these are not appropriate statutes or vehicles by which to order medical records. The Michigan Consumer Protection Act defines thirty one “unfair, unconscionable or deceptive methods, acts or practices in the conduct of trade or business.” MCL 445.903(1); MSA 19.418(3)(1). “Trade or commerce” is defined as “the conduct of a business providing goods, property, or services primarily for personal, family, or household purposes and includes the advertising, solicitation, offering for sale or rent, sale, lease, or distribution for sale or rent, sale, lease, or distribution of a service or property, tangible or intangible, real, personal, or mixed, or any other article, or a business opportunity.” Individuals who have suffered a loss as a result of violation of the Michigan Consumer Protection Act may bring an action to recover actual damages of $250.00, whichever is greater. Plaintiffs or plaintiff=s attorneys have cited a number of different unfair trade practices enumerated in the statute as violations for failure to produce medical records. The Courts have found that the copying of patient records is not trade or commerce within the act because a physician is not in the business of providing such a service. Rather, providing patients with copies of records is incidental to the practice of medicine.

One of the other recent attempts to gain medical records is through the use of the Freedom of Information Act. The only way in which a patient could receive medical records pursuant to this Act is if the actual patient was authorizing and requesting the release of records. A parent, sibling, or spouse who requests the release of medical records pursuant to the Statute are not entitled to the records. The basis for this decision is that the courts have ruled that only the real party in interest (the patient) has a standing to make such a request. An individual who is requesting medical records of loved ones may only assert his or her own legal rights and interests and cannot rest his or her requests for the medical records on the legal rights or interests of third parties.

The Copying of Medical Records is Unnecessary Until and Authorization is Provided

Frequently, physicians receive Subpoenas for the production of their medical records. Although a Subpoena appears as an official court document, and it can be quite intimidating to a physician and office support staff, the requirement of a signed authorization by the patient is not waived. The physician should also insist upon an original signed authorization rather than a faxed copy or an e-mail copy to protect the confidentiality of the patient. Given my experience and this office’s experience with copies of authorizations it is best that your office chart contain a signed original, the address and telephone number of the patient. If there is any question as to the genuineness or authenticity of the authorization, the physician or office support staff should contact the patient.

There have been a number of times where Subpoenas have been sent to a physician’s office and medical records have been copied and supplied without the mandatory authorization. This occurs in automobile accident cases, domestic relation disputes, billing disputes, criminal investigations, social services investigations, etc. For example, an unhappy spouse may subpoena their medical record through his or her attorney to determine whether there is alcohol problems, drug problems, sexually transmitted disease, etc. Parents may subpoena through their attorney, the records of their children for child custody disputes. Attorneys have subpoenaed the records of patients for purposes of pursing an automobile accident case. All of the above scenarios should include an original signed authorization by the patient. In this County civil actions have arisen against physicians for providing medical records pursuant to a subpoena, but, in the absence of a valid signed authorization.

X-Rays Are Not the Property of the Patient

Another frequent concern amongst physicians and physicians who work in hospitals, is the providing of x-rays. Many times patients will come a physician’s office or to the hospital requesting their x-rays. Many times these requests are legitimate for purposes of seeking treatment and other times the requests are somewhat nefarious (they wish to show them to the plaintiff’s attorney’s expert). Unless the doctor and the patient agree x-ray negatives are the property of the physician who prepared them. The courts have held that it is appropriate for a doctor to refuse to deliver x-ray negatives (the originals) even though the patient was willing that the negatives should be inspected by other physicians or removed from the physician’s office. The courts have ruled that in the absence of an agreement to the contrary, the x-ray originals are the property of the physician or surgeon who has made them incident to treating a patient. It is a matter of common knowledge that x-ray negatives are practically meaningless to the ordinary layman. But, the retention by the physician or surgeon constitutes an important part of his clinical record in the particular case, and in the aggregate these negatives may embody and preserve much value incident to physician or surgeon’s experience. They are as much a part of the history of the case as any other case record made by a physician or surgeon. In a sense, they differ little, if at all, from microscopic slides of tissue made in the course of diagnosis or treating a patient, but it would hardly be claimed that such slides were the property of the patient. Also, in the event of a malpractice suit against a physician or surgeon, the x-ray negatives which he or she has caused to be taken and preserved incident to treating the patient might often constitute the unimpeachable evidence which would fully justify the treatment of which the patient was complaining. Thus, in the absence of an agreement to the contrary, there is every good reason for holding the x-rays that are the property of the physician or surgeon, rather than of the patient or party who employed such physician or surgeon, notwithstanding the cost of taking the x-rays was charged to the patient or to the one who engaged the physician or surgeon as a part of the professional services rendered.

The suggested course with regard to the request of x-rays is to provide a copy of the original at the patient’s costs, even if it is claimed that the records are for subsequent treatment.

The Scope of the Medical Records Request Should be Reviewed

Frequently, an authorization for medical records will come to a physician=s office and the office support staff will copy off the entire record carte blanche, including correspondence from other physicians who may have been referring physicians, correspondence from medical billing, correspondence from Blue Cross/Blue Shield, copies of hospital records which would include other physicians such as consultants. It is suggested that a conservative approach be taken to the providing of medical records. If there is a question as to whether the record does not involve treatment (such as correspondence) then it usually does not fall within the scope of the request. It goes without saying that this conservative approach can be supported by the law in this State. First, there is a physician/patient privilege, MSA 27(A).2157 that indicates that no person duly authorized to practice medicine or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character. This also applies to physician support staff, including physician assistants. A physician assistant is considered the agent of the supervising physician pursuant to statute MSA 14.15(17078). The physician assistants shall conform to the minimal standards of acceptable and prevailing practice of the supervising physician. Further, there is support to take the conservative route by the fact that it is a misdemeanor to disclose the identity or treatment of a patient without the appropriate authorization, MCLA 750.410; MSA 28.642. The Michigan Court Rules require that a physician, hospital, or other custodian of medical information shall comply with a properly authorized request for medical information within twenty-eight days after the receipt of the request, MCR 2.314. This time frame is only valid in the event a lawsuit has been filed. Further, a properly authorized request must be from the patient, not from the parent, spouse or relatives of the decedent, it should be made with accompanying copies of “Letters of Authority” (these are official Probate Court documents authorizing that person to act on behalf of the decedent’s estate).

Conclusion

It is hoped this article provides an overview as to the appropriate concerns and checklists to detail before providing medical records. The physician or office support staff should check, at a minimum, the following:

1. Is there an original signed authorization by the patient.
2. Does the person signing the authorization have the authority to seek the patient=s records.
3. If the records are subpoenaed, is there an accompanying original signed authorization, or, if it is a request for a decedent’s records, are there accompanying Letters of Authority.
4. What is the scope of the request of the medical records.
5. Only those records need to be supplied which involve this physician’s care and treatment.
6. Original records are NEVER supplied to the patient, including x-rays, pathology slides, but copies should be made at the expense of the patient.
7. If there is any question about the authenticity or genuineness of the request, take the conservative approach.
8. If you have questions about any request for medical records, please call Cline, Cline & Griffin at (810) 232-3141.

Informed Consent issues have generated more articles, legal opinions and Court decisions than most other medical malpractice.  It is a very common secondary allegation in claims that involved complications from surgery, invasive diagnostic studies, and medications.  Many physicians and healthcare providers erroneously regard “informed consent” as something they give to patients.  Doctors and healthcare providers receive informed consent from patients who give their permission to proceed after they have been advised of the proposed procedure’s risks, alternatives and their risks, and expected outcome.

The discussion of risks and possible complications of surgery, diagnostic tests, and certain medicines can be uncomfortable for the doctor, and perhaps alarm the patient, unless the task is approached with compassion and good judgment.  When possible, the consent discussion should take place well in advance of the procedure.  Approaching the patient at bedside a short time before surgery, which was planned much earlier, heightens the patients anxiety and may not give ample time to make a clear decision.  Further, patients tend to have “selective memory” if discussion concerning informed consent occurs shortly before the procedure.  The ideal time for the discussion is in the physicians office, when the need for surgery, the diagnostic test, or the medicine is first disclosed.  With the patient’s permission, a close family member might be asked to join the discussion .  If there is some concern about a wary patient, it may be best to have a second healthcare provider present as a witness.  Be candid with the patient about the reasons for having the discussion.  Some doctors tell patients “just as there are risks associated with driving your car or flying, there are risks associated with many medical procedures, including surgery.  To help you better understand this surgery and enable you to give your informed consent, I would like to tell you about the possible complications of your surgery, unless you don’t want me to.”

When the patient indicates he does not wish to know the risks, the physician should document the patient’s decision in the medical records.  If the patient does wish to know, consider the following approach: “The entire surgical team will do our best to anticipate and avoid problems.  But, because there are many variables in medicine due to the different way patients respond to the same treatment, no doctor can guarantee a perfect result, although that is our goal.  Although serious complications are rare, they can occur no matter who does the surgery.  I want to assure you we will do everything to prevent these complications.  If one does occur, we will move quickly to manage it.  I am well trained and experienced in performing this procedure or diagnostic test.  The most serious complications that can occur with this surgery or this test are death, bleeding, infection, reactions to drugs or anesthesia, or damage to adjacent organs or tissues.  Sometimes we have to re do all or part of the surgery (with your surgery other complications occasional have been reported such as ).”

How to Make Informed Consent a Benefit for Physicians and Patients

1. Understand your State’s informed consent laws.  Contact a liability insurer or medical society for assistance.  Get advice if you are in doubt about what the law requires in specific situations.
2. Ask colleagues in your specialty what they disclose to patients about specific procedures, physicians in group practices should know how their colleagues obtain and document informed consent.
3. Use plain language when explaining medical procedures to patients.  The law does not require physicians to give patients a mini-course in medicine or to disclose every esoteric problem that could occur.  Put yourself in the patient’s position.  How much information would you want to know if you or a loved one were the patient?
4. Encourage patients to ask questions.  Don’t be offended if a patient seeks a second opinion about the surgery or tests you recommend.  Third-party payers often require second opinions; support for your recommendation is a plus.  Be sensitive to the fact that many people fear surgery and are anxious when they learn of adverse test results.  Speak and relate to patients as you would want other doctors to speak and relate to your family.
5. Train your staff to assist you to educate patients generally about treatment or surgery.  Use written materials models and audiovisual aids to supplement discussions with patients and family.  Document educational efforts.
6. At the conclusion of an informed consent discussion, ask the patient to sign a consent form, even if the hospital requires its own.  Sign the form yourself and give the patient a copy.
7. Document a summary of your informed consent discussions in your office chart and in the hospital admitting history and physical report; include the name and relationship of others who were present; include the name of foreign or sign language interpreters who participated in your discussions with the patient.

Recommended Reading

INFORMED CONSENT: What is Required of Physicians (in California, Hawaii, Idaho, Alaska, Nevada), Medical Insurance Exchange of California, 6250 Claremont Avenue, Oakland, CA 94618.  (Includes Consent Form)

Skelly, FJ, The Payoff of Informed Consent, AMERICAN MEDICAL NEWS, August, 1, 1994.

Abrams, et al.  Making Health Care Decisions, President=s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Vol 1 , October 1992, U. s. Government Printing Office, Washington, D.C. 20402

One of the newest trends in malpractice litigation is the failure of the system to address informed refusal. The “system”  refers to the medical practitioners who have recommended or suggested certain tests and/or procedures for the patient but such is refused by the patient.  Once the malpractice litigation starts, selective memory blocks out suggested  treatment which was not followed by patient.  For example, there have been numerous lawsuits involving whether the patient wanted blood tests done but did not want the bad news regarding their homosexuality, the patient is a Jehovah witness and did not want blood borne products or heart catheterization to diagnose a cardiac condition, mother denies she was offered genetics counseling or amniocentesis to check her unborn child, patients do not wish to pay for such diagnostic tests such as ultrasounds, MRI’s, CT scans or have an annual physical because it requires co-payment or out-of-pocket payment.  This brief article addresses the need and suggested format to perform an ideal informed refusal.

The real life examples are far too numerous to detail in this short article.  The details of specific refusals are irrelevant, but most important, and the reader leaves this article with one particular head note, that is, document.    A patient’s noncompliance is a common component of adverse healthcare outcomes. Such outcomes may develop into lawsuits.  Documenting the patient’s decision, specifically, with regards to noncompliance or refusal is a helpful defense strategy.

Michigan has a system of comparative negligence which allows the jury in appropriate cases to apportion the responsibility of the plaintiff’s injury.  In some instances the jury can reduce damages accordingly by a percentage basis of the patient’s negligence.  The patient’s noncompliance or refusal to have certain tests is often excused due to a lack of education.  Even when the patient is a nurse or physician, and even when the education has been provided, the patient will often claim they were not informed.  Therefore, it is imperative that the medical record reflect the information provided to the family and to the patient’s family.

• Document the worries or concerns expressed by the patient or the family member.
• Document sources of information given to the patient (written materials, audio’s, video tapes).
• Document information given to the patient at the time of discharge, patient instructions.
• Document patient information communicated over the telephone.

One of the most critical portions of healthcare is reliance on the telephone and failure to document such into the office records or hospital records.  Pertinent information with the patient over the telephone must be documented for complete records.  Such documentation includes the refusal or the noncompliance of the patient.

• Prescriptions and prescription renewals
• Healthcare information, even if the information has been provided previously.
• Advice to proceed to the emergency department or call for an office appointment.
• Appointment cancellations.
• Attempts to contact the patient for follow-up care, along with the phone number, provisions, tests results, recommendations or suggestions for follow-up care.

Use plain language when explaining medical procedures to the patient.  The law does not require physicians to give patients a mini course in medicine or to disclose every esoteric problem that could occur with a refusal.  Encourage patients to ask questions.  Don’t be offended if a patient requests a second opinion about the surgery or the tests you have recommended.  Third party payer’s often require second opinions; support for your recommendation is a plus.  Please train your staff to assist you to educate patients generally about treatment options or surgery.  Use written materials, audio materials, models, audio visual aides to supplement discussions with patients and family.  Document all educational efforts.

Following is an ideal informed refusal provided to a patient in a non-emergent situations, informed refusal should follow these five steps:

1. Doctor/patient and family meet to discuss options of treatment and recommendations.
2. Patient refused or is provided written material/audio material/video material or written brochures to be taken home.
3. A second meeting occurs where the options are again discussed and the physician ascertain whether the patient understands the risks of the procedure or treatment, and the downside of refusal.
4. Patient and doctor sign an informed refusal.  The patient takes a copy home.
5. Doctor writes a progress note, better yet, dictates in the patient=s presence the informed refusal.  Patient can sign and date the doctors progress notes.

The counter-part to informed consent is informed refusal.  For this reason, a form containing and addressing the doctors recommendations, suggestions and refusal by the patient is incorporated into this article for reference.  As always, your concerns and suggestions are welcomed.
Josè T. Brown, Esq.
CLINE, CLINE & GRIFFIN

What is Required by Health Care Providers

Informed Consent issues have generated more articles, legal opinions and Court decisions than most other medical malpractice.  It is a very common secondary allegation in claims that involved complications from surgery, invasive diagnostic studies, and medications.  Many physicians and healthcare providers erroneously regard “informed consent” as something they give to patients.  Doctors and healthcare providers receive informed consent from patients who give their permission to proceed after they have been advised of the proposed procedure’s risks, alternatives and their risks, and expected outcome.

The discussion of risks and possible complications of surgery, diagnostic tests, and certain medicines can be uncomfortable for the doctor, and perhaps alarm the patient, unless the task is approached with compassion and good judgment.  When possible, the consent discussion should take place well in advance of the procedure.  Approaching the patient at bedside a short time before surgery, which was planned much earlier, heightens the patients anxiety and may not give ample time to make a clear decision.  Further, patients tend to have “selective memory” if discussion concerning informed consent occurs shortly before the procedure.  The ideal time for the discussion is in the physicians office, when the need for surgery, the diagnostic test, or the medicine is first disclosed.  With the patient’s permission, a close family member might be asked to join the discussion .  If there is some concern about a wary patient, it may be best to have a second healthcare provider present as a witness.  Be candid with the patient about the reasons for having the discussion.  Some doctors tell patients “just as there are risks associated with driving your car or flying, there are risks associated with many medical procedures, including surgery.  To help you better understand this surgery and enable you to give your informed consent, I would like to tell you about the possible complications of your surgery, unless you don’t want me to.”

When the patient indicates he does not wish to know the risks, the physician should document the patient’s decision in the medical records.  If the patient does wish to know, consider the following approach: “The entire surgical team will do our best to anticipate and avoid problems.  But, because there are many variables in medicine due to the different way patients respond to the same treatment, no doctor can guarantee a perfect result, although that is our goal.  Although serious complications are rare, they can occur no matter who does the surgery.  I want to assure you we will do everything to prevent these complications.  If one does occur, we will move quickly to manage it.  I am well trained and experienced in performing this procedure or diagnostic test.  The most serious complications that can occur with this surgery or this test are death, bleeding, infection, reactions to drugs or anesthesia, or damage to adjacent organs or tissues.  Sometimes we have to re do all or part of the surgery (with your surgery other complications occasional have been reported such as ).”

How to Make Informed Consent a Benefit for Physicians and Patients

1. Understand your State’s informed consent laws.  Contact a liability insurer or medical society for assistance.  Get advice if you are in doubt about what the law requires in specific situations.
2. Ask colleagues in your specialty what they disclose to patients about specific procedures, physicians in group practices should know how their colleagues obtain and document informed consent.
3. Use plain language when explaining medical procedures to patients.  The law does not require physicians to give patients a mini-course in medicine or to disclose every esoteric problem that could occur.  Put yourself in the patient’s position.  How much information would you want to know if you or a loved one were the patient?
4. Encourage patients to ask questions.  Don’t be offended if a patient seeks a second opinion about the surgery or tests you recommend.  Third-party payers often require second opinions; support for your recommendation is a plus.  Be sensitive to the fact that many people fear surgery and are anxious when they learn of adverse test results.  Speak and relate to patients as you would want other doctors to speak and relate to your family.
5. Train your staff to assist you to educate patients generally about treatment or surgery.  Use written materials models and audiovisual aids to supplement discussions with patients and family.  Document educational efforts.
6. At the conclusion of an informed consent discussion, ask the patient to sign a consent form, even if the hospital requires its own.  Sign the form yourself and give the patient a copy.
7. Document a summary of your informed consent discussions in your office chart and in the hospital admitting history and physical report; include the name and relationship of others who were present; include the name of foreign or sign language interpreters who participated in your discussions with the patient.

Recommended Reading

INFORMED CONSENT: What is Required of Physicians (in California, Hawaii, Idaho, Alaska, Nevada), Medical Insurance Exchange of California, 6250 Claremont Avenue, Oakland, CA 94618.  (Includes Consent Form)

Skelly, FJ, The Payoff of Informed Consent, AMERICAN MEDICAL NEWS, August, 1, 1994.

Abrams, et al.  Making Health Care Decisions, President=s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Vol 1 , October 1992, U. s. Government Printing Office, Washington, D.C. 20402

When faced with the need to obtain medical records concerning a prospective personal injury client, (i.e., one who is being seen for the first time, and whose potential claim is undergoing an initial evaluation), Plaintiff’s attorneys frequently must deal with what seems a time-consuming and inefficient process. Too often, the initial request for a treating physician’s medical records can meet with incomplete responses, too long in coming, at a cost which bears no obvious relationship to the task at hand. With regard, in particular, to the completeness of the response, the importance of receiving all of the physician’s records (i.e., not only those generated by the treating physician, but also by any consultants or prior treaters who have seen the client/patient in the past, etc.) is obvious: no attorney wants to file a claim or suit, only to find out later that the client has been less than “straight” with them regarding pre-existing conditions or injuries. Once the claim is brought, attempting to abandon it when the attorney later learns of such possible impediments to any recovery can be impractical, unethical, or both.

Promptness, too, can frequently be an issue, especially in instances where a statute of limitations expiration date is looming. In those circumstances, the attorney who wishes to obtain medical records concerning a client on whose behalf he or she is considering bringing a claim or suit requires a means to promptly obtain the complete record, again at a cost that is reasonably related to the size of the record being copied and sent.

From the standpoint, on the other hand, of the client/patient’s physician, it is useful to consider that a continuing source of frustration concerns the recurrent need for such health care providers to respond to records requests, (subpoenas, in this context, being inapplicable, since no “case” yet exits), issued in conjunction with potential claims for personal injuries. Whether such requests for information are received in association with the investigation of a possible medical malpractice claim, or in the less threatening setting of a potential claim of alleged negligence of a third party, (or, for that matter, with respect to administrative proceedings such as those involving workers compensation claims), the determination of how the physician ought to respond to such requests for information is often fraught with worry and uncertainty.

Another worthy consideration, in this context, is that among the overhead costs which cut into the “bottom line” of the average physician’s practice are those associated with the task of complying with requests for copies of patient records. Practitioners of the “learned professions,” and physicians in particular, today must operate their practices like businesses, with near constant attention to the bottom line being critical to continued existence, and requests for copies of patient records, whether the form of an actual subpoena or in the form of a request letter received from the patient’s attorney, do more than annoy: they represent another business expense that threatens the capacity of the physician to continue providing quality medical care to his or her patients.

Against this backdrop, it becomes understandable, if not acceptable, that such requests too often meet with delay, incompleteness, arbitrarily set copying fees, or some combination of all of these.

In recognition of these competing concerns, and in an effort to address them in a way that might allay them for both sides of the professional equation, a joint committee, comprised of members of the Genesee County Bar Association, the Genesee County Medical Society, and the Medical Society Alliance (formerly known as the “Auxiliary”), recently engaged in a year-long effort to fashion a “SAMPLE FORM FOR INITIAL (I.E., PRE-SUIT) REQUEST FOR MEDICAL RECORDS.” The final product, which appears below, was drafted with input from, and ultimately the official endorsement of, both the Genesee County Medical Society and the Genesee County Bar Association Board of Directors. In its conception, as well as in its proposed effect, the design of the “Sample Form” promotes the specific purposes of facilitating and expediting the process of initially evaluating personal injury claims, while at the same time initiating a respectful dialogue between the attorney doing the legal “evaluating” and the health care provider who has been involved in the process of medically evaluating the client. Further, although it is a “proposed” form, only, its joint endorsement by the GCBA and the Genesee County Medical Society demonstrates that it strikes an appropriate balance, in terms of the mutual interests that both professional societies have in seeing that the members of each are serving their client/patients to the very best of their ability.

To that end, it should be noted that the Sample Form, among other things, contains all of the following: (1) a statement that the attorney has been retained by the patient to investigate a particular type of claim, e.g., automobile negligence, premises liability, workers compensation, professional medical negligence, etc.; (2) a statement referencing an enclosed, signed authorization by the patient for release of the patient’s entire chart; and (3) a statement assuring the physician that reasonable copying fees and costs will be promptly be reimbursed.

The second and third of these features, as one might expect, generated no controversy whatsoever when the Medical Society and the GCBA Board agreed to endorse the Sample Form.¹ As to the first, however, the same cannot be said. Clearly, no attorney can, or should, be compelled to disclose the substance of confidential communications between the attorney and the client, and the GCBA Board of Directors, (some members more vociferously than others), raised objections to this portion of the sample form on the basis that, even if it did not directly implicate some violation of the attorney-client privilege, it nevertheless amounted to a disclosure which was “nobody’s business” but that of the client and the lawyer. In the end, however, after discussion was had concerning the idea that, simply because an attorney could not be compelled to disclose the type of claim being investigated did not mean that any good reason existed to withhold that information, a unanimous vote of the Directors present at the meeting endorsed the sample form with this provision included. Those Directors, it is believed, were persuaded that more prompt, complete, and sensibly priced responses to initial medical records requests will be forthcoming if the client=s physician is not forced to guess whether the request is, or is not, related to a possible claim for malpractice.

Essentially, identification of the particular type of claim being investigated was seen as a desirable act under most circumstances, not because the physician was entitled to know this information, but as a gesture which both served as a professional courtesy extended to the physician, and as an act of “enlightened self-interest” designed, again, to expedite a complete and sensibly priced response to the records request.

To these ends, and given the input and endorsements, respectively, of the Genesee County Medical Society and the Bar Association Board of Directors, it is respectfully urged upon the Genesee County area legal community that, except in circumstances where an articulable reason exists not to make use of the “Sample Form for Initial (i.e., pre-suit) Request for Medical Records” when initiating evaluation of a client’s potential claim, “if you try it, you will like it.”

Francine Cullari, J.D., Genesee County Bar Association

Peter Levine, Executive Director, Genesee County Medical Society

Cyrus Farrehi, M.D., Genesee County Medical Society

Ramona Sain, Executive Director, Genesee County Bar Association

Glenn M. Simmington, J.D., Genesee County Bar Association

Edward P. Davison, J.D., Genesee County Bar Association

MaryLou Mathias, Genesee County Medical Society Alliance

Harvey Olds, M.D., Genesee County Medical Society

John Kalo, J.D., Genesee County Bar Association

1. “Patient experiences difficulty swallowing, tires easily.”
2. “History: Patient was shot in head with 32 caliber rifle. Chief complaint: Headache.”
3. “History: Patient has been married twice, but denies any other serious illnesses.”
4. “Prescription Rx: Vmycostatin – vaginal suppositories times 24, sig: insert daily until exhausted.”

These are humorous, although absurd examples of violations of the basic rules of documentation. It is recommended that from time to time every physician must consider the reasons for documenting patient care and, further, to determine “when” and “what” to document. These reasons include: a planning tool to promote continuity of care, document the course of illness/treatment, reliable means of communication for the health care team, basis for review of quality of care, establish a data base for education/research, provide a basis for payment, and to protect the legal rights of all involved.

Unfortunately, some physicians forget that one of the reasons for documentation is to protect their legal rights.

The basic rules of documentation from a legal perspective would include: document all findings which are essential to a diagnosis or patient care, document all findings (positive or negative) which are customarily documented in similar situations, records should be consistent (for example: laboratory tests, chest x-rays should be consistent with the clinical progress note), continuous processes which are unchanged need not be documented but should be, the description of a physical examination should clearly identify what was examined and the findings, document the possible diagnosis/complication/impression that are being considered and label the conclusion as a diagnosis complication or impression. All boxes, blanks or checklists on a medical record form should be completed (many physicians receive medical form checklists from drug representatives that are not entirely filled out for the medical records form of a hospital may have a box that was improperly checked, a specific example being a consultation sheet in terms of the timing of the consult and as to what management is to be provided).

Defending medical malpractice actions the records credibility and thoroughness as a professional accurate document is extremely important to the success of the defense. Many cases have been settled due to the lack of or inappropriate documentation. Some consideration as to professional accurate documents include avoiding expressions which imply disapproval or negative value judgments of the patient, avoiding expressions which imply the patient’s complaints are not being heard or taken seriously, you should describe assumptions made about the patient’s motives as possibilities rather than as statements of fact, and do not document your frustration with or disapproval of difficult patients. There are a number of things which should not be documented in the medical record, including professional debates, incident reports, staffing shortages, disagreements, reports relating to other individuals, and policies and procedures of the hospital.

The consistent structure of progress notes and good organization of the records’ contents will aid in more complete documentation of the care provided and can also assist an easy retrieval of vital information and prevent errors in patient care. The SOAP format (S = subjective data; O = subjective data; A = assessment and P = plan) certainly organizes unnecessary information but may not address unusual circumstances.

In the medical malpractice arena, there is no doubt that unusual circumstances or problems with patient care develop. These unusual circumstances that impact the continuity of care should be documented in a carefully prudent manner. It is suggested that these guidelines for unusual circumstances may be helpful:

Always document medical complications, mishaps, or unusual occurrences in the medical record.

Use terms that reasonably reflect what happened. Do not misrepresent the facts.

Omit all risk management/risk prevention activity from the record.

Legal threats and complaints about care may be briefly documented in a non-judgmental neutral manner, do not hesitate to seek legal advice prior to “committing testimony to print”.

A frequent occurrence is the non-compliant patient, however, the lack of documentation to reflect the patient=s responsibility undoubtedly, this is a common component to adverse health outcome, which many times develop into law suits. It is therefore imperative to document the patient=s responsibility which caused or contributed to the adverse outcome. This can be a helpful defense strategy. Patient non-compliance can occur due to a lack of education and even where the education has been provided, the patient will often claim they were not informed. Therefore, it is imperative the medical record reflect the information provided to the patient and to the patient’s family. Some issues to be concerned with in terms of documentation of non-compliance is to document the worries or concerns expressed by the patient or the family member, document sources of information if other than the patient, document information given to the patient at the time of discharge, document pertinent information communicated via the telephone (and save your phone messages).

From time to time it is best to be reminded about the significance of the medical record. In many malpractice cases the record carries much greater weight in defending a case than the doctor’s actual testimony. If prepared adequately and contemporaneously with patient care it can be one of the best defense tools available in malpractice actions.

Submitted by:

CLINE, CLINE & GRIFFIN

José T. Brown

by JOSÉ T. BROWN, ESQ.

CLINE, CLINE & GRIFFIN

Charles Dickens second historical novel, A Tale of Two Cities, opens with “It was the best of times, it was the worst of times”. This reference contrasted the high life of English nobility to the French nobles’ abuse of peasants resulting in the French Revolution. The Dicken’s quote statement crystallizes the present state of affairs regarding Medicare fraud and abuse; the Federal Governments view of Medicare reimbursement (the best of times) contrasted to the patient’s ability to pay (worst of times). I have been frequently asked in these declining economic times whether it is appropriate for a professional corporation or an individual physician to forgive or avoid collecting a co-payment or deductible. I am mindful that many physicians, as a professional courtesy wish to waive a deductible or a co-payment on behalf of an economically down and out patient. There is a proper legal and documented method to avoid anti-kickback violations and Medicare fraud and abuse.

I do not have a political agenda on this issue but there are financial incentives from the Federal government via Qui Tam (an action brought by an informer) of the False Claims Act to encourage private individuals (billing clerks, insurance agents, accountants, drug representatives) to report fraud being perpetrated against the government. There is an ever increasing number of whistle blower claims for health care fraud in these declining economic times. In my opinion, the Federal government, through the OIG (Office of Inspector General), believe medical programs such as Medicare are ripe for plunder. This “season for plunder” can and should be avoided with proper legal advice. I read with great interest the article in the recent Michigan Medicine entitled Waiver of Co-Payments or Deductibles and Professional Courtesy. The essence of this article is that “Physicians should make sure there is no misrepresentation in an insurance billing statement which either states a fact or fails to reveal a material fact which results in a misrepresentation to the insurer. Any waiver or discount should be reflected in the insurance statement so as to avoid this potential statutory violation”, Michigan Medicine by Daniel J. Schulte, JD, MSMS Legal Counsel, Vol. 107 #2. Attorney Schulte provided excellent cautionary legal advice but did not provide a solution to this conundrum.

There are several legal vehicles to pursue a claim against a physician: False Claims Act, Qui Tam (Whistle Blower), Medicare Fraud, Stark Violation, or the Anti Kickback Law. This article will specifically address the Anti-Kickback Law and recommended avoidance of its False Claims Act liability.

REASON FOR STATUTE

The Federal Anti-Kickback Statute, 42 USC 1320a-7b, arose out of congressional concern that payoffs to those who can influence health care decisions will result in goods and services being provided that are medically unnecessary, of poor quality, or even harmful to a vulnerable patient population. The Act provides for criminal penalties for certain acts impacting Medicare and State healthcare, (e.g. Medicaid), reimbursable services. To protect the integrity of the Medicare/Medicaid programs Congress enacted a “per se” prohibition against the payment of kickbacks in any form regardless of whether the particular kickback gives rise to over utilization or poor quality medical care. The Anti-Kickback Statue prohibits any person or entity from making or accepting payment to induce or reward any person for referring, recommending or arranging federally funded medical services including services provided for the Medicare and Medicaid programs. A violation of the Anti-Kickback Statute can give rise to the False Claims Act Liability. In plain English, would a waiver of co-payments or deductible induce a patient to “refer” further medical care? The Office of Inspector General (OIG) should not answer this question for you.

Section 1320a-7b(b)(2) has generally been applied to broker-style arrangements, whereby an individual offers remuneration to another individual for the purpose of recommending or referring an individual for the furnishing or arranging for an item or service (i.e. back scratching). In an Anti-kickback Statute “per se” analysis, it is immaterial whether remuneration induces one in a position to refer or recommend. It is sufficient that the remuneration “may” induce one to refer or recommend. United States v. Greber. Under Greber, it is also irrelevant that there are other legitimate reasons for the remuneration (i.e. professional courtesy). If one purpose is to induce referrals, then the Anti-kickback Statute is violated. This could be the course of events by waiving a deductible or a co-payment.

REMEDY FOR FINANCIAL HARDSHIP

It is my belief in addressing this particular Statute it is best to err on the side of caution.

There are several regulatory safe harbors under the Anti-kickback Statute including, waiver of beneficiary co-insurance and deductible amounts. There is also an exception to the Anti-kickback Statute for economically disadvantaged patients. First, if personal hardship is an issue it should be documented to the billing record and verified by the patient (the patient may be out of a job, their house is being foreclosed, or some other tragic personal financial hardship). Second, the verification should be documented by patient acknowledgment on the bill. The basic prohibition of the Anti-Kickback Statute in the instance of a waiver is whether the waiver is meant to influence referrals. Both the person/entity paying and person/entity receiving payment can be charged with a felony or be subject to civil monetary penalties. The legal issue becomes whether the payment or receipt of the payment was made “knowingly and willfully”. How the Courts ultimately interpret this benchmark requirement is irrelevant for purposes of my advice and recommendation. . . Don’t let the issue go this far by failing to document the financial hardship.

CONCLUSION

In these difficult economic times many patients don’t have the financial where with all to pay a deductible or co-payment. Medical care can be compromised by non-compliant indigent patients. The suggested solution to providing appropriate medical care at a discount to financially strapped patients requires the savvy to review your physician contracts and utilization of proper documentation. The proper documentation can pass the smell test of the OIG.

In Conjunction with an Article By Raymond Chan, M.D.

Awaiting the verdict after a lengthy civil trial provides an anxiety unknown to many physicians. It is a period of time that cannot relate to other experiences in life because the Defendant physician faces uncertainty. A recent lengthy civil jury trial completed June 27, 1997, resulted in certain observations which may be helpful to physicians of the Genesee County Medical Society. These observations include:

1. Defendant Doctor’s participation in trial is an absolute benefit to the Trial Attorney.
2. Defendant Doctor has a much better understanding of the application of law and facts to the medicine being judged by personal involvement.
3. Expert Witnesses varying in experience, degree, and background may be placed on the same plateau in the Jury’s eyes.
4. Theories of the claims against the Defendant Doctors can change or be modified during the course of trial.
5. It takes a great deal of conviction and commitment from the Defendant Doctors to be thoroughly involved in this process.

There is an old adage that one should not complain unless involved. This adage should be strictly applied to the doctor’s participation in discovery and trial. Discovery is the legal term utilized for purposes of investigating the case to prepare for trial (answering Interrogatories, taking depositions, reviewing medical records, review of medical literature, discussion with defense experts about the defense theory of the case.) At the trial, the jury determines the facts learned during the discovery process. In most medical malpractice cases, the discovery process will average approximately a year and one-half to two and one-half years, with trial following thereafter. It goes without saying that many doctors become frustrated and eventually exasperated by the length of time it takes to resolve their case. The defendant doctors vary widely in their participation in the case. The spectrum includes: 1) out of sight, out of mind (I won’t open my mail or return my attorney’s phone calls and then eventually this case will go away); 2) the wild-eyed pinball defendant (responding to every correspondence and every telephone call with three or four inconsistent responses); 3) somewhere in between is the “ideal” defendant, one willing to participate in his or her defense by attending depositions, by reviewing medical literature and providing important medical literature to your attorney, being well prepared for their own depositions by reviewing the medical records, and continuing to provide rational insightful thoughts about defense of the case.

There are several keys to a good defense, which may vary depending upon the type of case, the strength of the medical facts, the strength of the plaintiffs’ attorney and the relative philosophy of the Judge. However, there are several key consistent points in all medical malpractice cases that should be addressed:

1. Preparation for your deposition. (Many physicians tend to review only their progress notes or their orders in the chart and do not have a good handle on what the Nurse’s notes may indicate, or other physicians’ slants on treatment, based upon their progress notes and orders. This lack of preparation can be devastating to a medical malpractice defense.)
2. They don’t listen to their attorney before deposition. On innumerable occasions attorneys in this office have advised the doctors that “Yes”, “No”, “I don’t recall” are fine and appropriate answers in a deposition, yet, some doctors can’t help themselves in wanting to educate the plaintiff’s attorney about his or her knowledge of medicine. The deposition is not going to be read by the plaintiff’s attorney for theories to be developed against a doctor, but rather, by the plaintiff’s expert, who in many cases is a “hired gun”.
3. Being willing to attend plaintiffs’ and experts’ depositions. In many cases there is a who believes whom scenario raised in front of a jury. Did the doctor tell the patient this or does the patient have selective memory during a hospitalization or office treatment? Attending the plaintiffs’ depositions can minimize the exaggeration for effect that occurs by many plaintiffs. Secondly, attending the deposition of plaintiffs’ expert takes courage. I have not seen many experts back down from their opinions because the defendant doctor is sitting across the table from them, however, the defendant doctor certainly gets a handle upon leaving the deposition as to whether the expert is credible, whether is opinions are accurate and well-founded, and in the doctor’s mind, whether the case should proceed to trial.
4. Insist upon reading all of the depositions. The attorneys in our office prepare Summaries for the insurance company or the hospital risk manager for review. This is not to be substituted for the deposition transcript of the particular witnesses in the matter. The doctor should insist upon reviewing the transcript so they get a good grasp of those depositions they did not attend. It should be pointed out that many insurance companies will pay the expenses of the defendant doctor to attend depositions, many of which occur out-of-State, requiring air fares or hotel fees.
5. Review every single record and deposition prior to trial. Plaintiffs’ attorney will be prepared to ask you questions on every record or deposition which has been utilized in the case. There is nothing worse in the presence of a jury of not knowing a medical fact, or, being unable to read a nurse’s entry.
6. Please attend your trial with interest and confidence. Many trials have been lost, even though the doctor was present due to lackadaisical poor attitudes. Why attend the trial if it is to be looked at as a hindrance, rather than a learning process in which you are trying to educate a jury on the risk versus benefits or the judgments you must make in treating patients on a daily basis. The trial should be an exercise in educating jurors who will be very similar to your own patients, who will be laymen rather than a jury of your “peers”. Most jurors understand that physicians are not “God” or warrantor of cure, but, do the best they can with available resources. To tarnish this image by displaying a poor demeanor or bad attitude during the course of a trial only motivates a jury to return a verdict against the doctor.

Despite these edicts or commandments from the attorneys in our office, regarding malpractice cases, many doctors want to play with fire by only partially fulfilling the above directives.

I am certain that if these guidelines are followed, this office, along with the help of the local medical society, will continue to maintain the high percentage of “No Causes” before Genesee County Jurors. The participation of an interested Defendant Doctor is invaluable in defending medical malpractice cases.

P.S. After four and one-half hours of deliberation following a five-week trial, the Jury returned a “No Cause For Action” in favor of Dr. Raymond Chan and Dr. Roberto Villegas.

There are many troublesome situations in which a physician, or a physician=s office, could be alleged to have abandoned the patient. These include:

1. Unqualified refusal to further attend to the patient.

2. Leaving the patient unattended during or immediately after an operation while presence is necessary.

3. Refusal to treat at a certain time or at a certain location.

4. Premature discharge or dismissal of a patient.

5. Failure to give proper instructions before discharging a patient.

There are also many practical and valid reasons why physicians are withdrawing or discontinuing medical care. These may include;

1. Illness or death of the physician. This can excuse unilateral ending of the patient care relationship, but only with timely notification and the patient’s opportunity to get another physician. If immediate treatment is needed, the physician should arrange for a competent substitute.

2. Patient uncooperativeness. Liability can be avoided by following procedures under the next heading entitled “Important Guidelines.”

3. Substitution of another physician. This can pose problems if a patient isn’t given notice or doesn’t agree to the substitution. Ask for and get consent.

4. Unpaid medical bills. Courts generally have held this doesn’t justify unilaterally terminating the relationship when the patient still needs medical attention.

There is no question that the patient must absolutely be informed, in writing, of your intention to withdraw from the case. Send the letter by certified mail with a return receipt requested. Document any discussion with the patient and the issuance of the letter in the patient’s medical record. Your office staff should also document any contact they have had with the patient. If appropriate, and if the patient has given a consent of an individual to contact in an emergency, it may be appropriate to provide notification to a “significant other.” This letter should address the following issues:

13072. Advise the patient of your intention to withdraw and provide a sufficient period of time for the patient to obtain another physician.

13073. Refer the patient to a State or Local Medical Society (provide name, address and telephone number) to obtain a list of other physicians in the speciality required.

13074. State the reasons that led to the decision to withdraw from the care of the patient, failure to meet financial obligations, failure to cooperate in the established plan, illness or death of the physician, etc.

13075. State the reasons for termination in general terms, not specific. If the patient has urgent problems address it – mention a specific period of time in which the patient should be seen by a subsequent treating physician for the problem. State the urgent problem in general terms indicating the potential consequences.

13076. State your availability for emergency treatment if possible.

13077. Provide a deadline for withdrawing from the case, “After July 30, 1998, I will not see you as a patient.” If you do see the patient after this letter is issued, remember you must begin the entire process again.

13078. You may provide a copy of your office records or a summary of the care provided, to the new attending physician (with proper authorization from the patient). However, be certain not to breach confidentiality privileged by Statutes (e.g. psychiatrists or psychologist=s reports, drug and alcohol abuse). It may be best to contact legal counsel.

Unfortunately each letter must be tailored to the individual situation. A form letter will not work in situations in which there are efforts made to address any patient’s urgent problems. The following guidelines may be useful, but not necessarily totally effective in handling all situations. The advice of an attorney may be helpful in safeguarding against circumstances which pose additional or special risks:

Withdraw from care of uncooperative patients with written notification. Send letters by certified mail, requesting a return receipt (to verify delivery).

Specify reasons for withdrawing in tactful, general terms; allow adequate time for the patient to make other medical care arrangements; advise on ways those other arrangements could be made; offer to provide copies of medical records to a new physician; advise if patient should be seen by another physician within a specific period of time (to have an urgent problem handled); provide a general warning of consequences of leaving the problem untreated; indicate willingness and availability to treat emergency needs for a specified period of time; identify a specific date after which care will be discontinued.

Documentation is critical. Retain original hospital, laboratory or office records, along with copies of letters and certified mail return receipt.

Hospitalized patients require additional precautions. Be certain another competent physician has assumed full responsibility prior to discontinuing care. In teaching hospitals, remaining involved in a case because of “interest” after providing a consultation can be dangerous. Document all transfers of patients to other physicians, including the patient’s agreements to the transfers. A transferring physician should be certain the new physician acknowledges (in the record) acceptance of responsibility. At that point, the withdrawing physician should disassociate with the patient care management; a discharge/transfer summary should be dictated immediately ( a delay could implicate the withdrawing physician in subsequent problems).

Clearly define roles of attending physicians, consultants, one-time care-givers. Physicians with initial responsibility may be legally responsible and subject to abandonment charges.