Legal Aspects in Medical Records

Rajakumar.M,
Manager-Medical Records,
Aravind Eye Care System.

Every medical record reveals patient-centered information. The patient is the recipient of the medical care, which is offered to him by a team, which usually consists of the doctor, the nurse and the paramedical worker. All activities by the team are for the benefit of the patient and this is recorded, thus making the existence of the hospital medical record possible. With the advancement in medical knowledge and the complexity of modern medical and surgical treatment, an accurate and adequate medical record is essential as a documented reference of the patients treatment, while in the hospital.

The hospital compiles and keeps medical records for the benefit of the patient, as well as the protection of the hospital and physician. However, the personal data contained therein, considered confidential, is a property of interest of the patient. In addition to being kept for the benefit of the patient, medical records are also kept as a guide to consultants, for the education of undergraduates and postgraduates, for the training of nurses, for medical statistics research, and for the protection of the physician, hospital staff and hospital against unjust criticism.

Ownership and records:
The medical record, although kept for the benefit of the patient, the physician, of the hospital, is the property of the hospital. Therefore, the hospital, may restrict the removal of the record from the medical record files or hospital premises. Moreover it may determine who may have access to it (except when a court order directs that a record be produced). But the patient or those who represent the patient may also have right to see the information if they can show good cause.

In a nutshell, both the legal and moral responsibilities of the hospital require adequate safeguard to present unauthorised persons from gaining access to a patients medical record. Security begins at the time the record in initiated and extends throughout the patients hospitalization and also after his discharge.

Confidentiality:
It is a universally accepted notion that the information found in medical records is confidential. But when analyzing the concept of confidentiality, it will be found that there are number of questions arising such as: to whom is the record confidential & under what circumstances is it confidential?

Information in the medical record in basically of two types.

  1. Identification data
  2. Clinical data.
Identification Data:
It consists of entries in the record which do not specifically relate to the patient care or treatment in the hospital. E.g., name, sex , age, etc. These items are often found in the admission record or face sheet of the health record and are generally not considered to be confidential information. This means that upon receipt of a legitimate request, it is generally acceptable to release the information without the patients permission.

Clinical data:
This includes all items entered in the medical record relating to the patients diagnosis and treatment. E.g.: reports generated by physicians, nurses, allied health personnel and results of tests will fall under him category. Clinical information in medical records in confidential because it is held that the relationship between patient and physician is special and that their communication should be protected from disclosure.

Patient Access:
The patient and those who represent the patient and those who have authorization from the patient with a legitimate reason may see his record.

The patient has the following rights:
  1. To get considerate and respectful treatment from all staff in the hospital (from consultant to cleaner) and to receive safe care at all times.
  2. To obtain from his or her physician complete, current information concerning his diagnosis, treatment and prognosis in terms that the patient can reasonably understand.
  3. To receive necessary information for informed consent from his or her physician prior to the start of any procedure or treatment.
  4. To have every consideration of privacy concerning his or her own medical care program.
  5. To expect that all communications and records pertaining to his or her care should be treated as confidential.
Whom to release information?
The major consideration bearing upon disclosure should be the nature of the information requested and the person or agencies requesting the information.

Majority of the request will come from:
  1. The provider and the relatives.
  2. The member of the medical staff, other physicians and hospitals concerned with the care of patients.
  3. The third party payers, government and other agencies.
In these cases the confidential information may be released with appropriate authorization. The consent generally may be given by the patient himself or by legally qualified representatives. Such as the parent of a minor, the spouse, the guardian of an infant or an agency designated by the court as guardian. The consent of the patient is not required when a subpoena or an order of a court directs that records be produced.

Without the consent of the patient, the hospital may allow physicians to consult its medical records for purposes of study, statistical evaluation, research and education. If the records are requested for such purposes by persons other than the hospitals staff or an affiliated organization it is wise to obtain the approval of the administrator or of the medical record committee.

The hospital shall not disclose to an insurance company any patient identifiable medical record information maintained by the hospital unless the request in accompanied by the patients authorization for disclosure of information necessary to process the insurance claim.

Preservation of medical records
The length of time medical records should be retained will vary depending on the purpose for which the record in being kept. In formulating a record retention policy a health care institution must be guided by its own clinical, scientific and audit needs, and the possibility of future patient litigation.

It is recommended that complete patient medical record in a hospital usually be retained, either in original or reproduced form, for 10 years (depending upon workload). After 10 years such records may be destroyed; however, the hospital may follow such retention guidelines as:
  1. Retain basic information such as date of admission and discharge, names of responsible physicians, records of diagnosis and operations, surgical procedure report, pathology report and discharge summary for all records so destroyed.
  2. Retain complete medical records of minor and mental disability patients.
  3. Retain complete patient medical records for longer periods when requested in writing by one of the following,
    1. An attending consultant or physician of the patient.
    2. The patient or some one acting legally in his behalf.
    3. Legal counsel for a party having an interest affected by the patient medical records.
Thus the length of time that medical records are to be retained is dependent upon the need for their use in continuing patient care and for legal, research or educational purpose.

Impact of the Consumer Protection Act in the medical field
In 1986, the consumer protection act in the healthcare field came into existence. According to this act, health care providers including doctors, nurses, paramedics and hospital administrators have to be meticulously careful in understanding the full responsibilities that they have to fulfill in the legal and administrative sense. This becomes imperative to ensure whatever the services rendered have been properly documented in patient records to safe guard the staff involved in the consumer service.

Who is a consumer?
Any person who buys any goods against consideration is a consumer. From the health point of view the paying patient who receives health services from clinics, health institution, nursing home, etc. is considered to be the consumer.

Why is there a need for a Consumer Protection Act?
The legislature has enacted the Consumer Protection Act, 1986 to arm each and every consumer with rights to seek speedy, cheap and efficacious remedies and for better protection of the interests of the consumer .

What is service?
It is defined as medical / health service of any type received in any recognized health institution, clinic, or nursing home from a qualified medical, nursing, paramedical professional, by a patient.

What is deficiency?
Under the Act, deficiency in relation to any service means any fault, imperfection, shortcoming, inadequacy in the quality, nature and manner of performance which is required to be maintained under law.

Medical record in court
The presentation of information from medical records as evidence in a court is quite relevant. Indeed as it has been indicated that the record is maintained not only to provide information for medical and administrative purposes but also because it contains data of the highest value of the individuals and organization. The court has a legitimate interest in accessing its contents.

When a subpoena or court order is given to the hospital to disclose the information in medical record of a concerned patient, the steps that should be taken to prepare the record to submit in the court are as follows:
  1. Determine if the patient has a record at your hospital and where it is located.
  2. Check the record to make sure it is complete, signature and initials are identifiable, each sheet contains the patients name and number.
  3. If the record in complete take steps to expedite its completion.
  4. Become familiar with the contents of the record, for you may be called to read from the record on the witness stand.
  5. Obtain additional records specified in the subpoena. E.g.: X ray films, bills, etc.
  6. Remove any notes concerning a psychiatric condition unless the patient and psychiatrist have agreed to admit this information into evidence.
  7. Remove all correspondence, duplicate copies of reports.
  8. Number each page of the record and record the total number on the record folder.
  9. Photocopy the record and complete a statement which certifies that a copy is an exact duplicate of the original.
Finally a receipt may be accepted from the court in case the medical record is retained for an indefinite period.

Confidential Communication:
Medico-legal problem often concern the hospital administrator, but are then transmitted to the responsibility of the records department personnel; if there is no medical record department, this responsibility is usually vested with the casualty medical officer. The treating of medico-legal cases are day-to-day problems and it is necessary that policies governing the release of confidential information be clearly defined by the administrator; the medical record must be safely guarded from unauthorized inspections. The medical record is used either as a personal or an impersonal document.

Personal Document:
As a personal document the record is used to identify the patient with the history of his illness, the physical findings and the treatment given to the individual. The information is confidential and may not be released to anyone without the patients permission. However, the executors of an estate or their legal representative, in as much as they are to act in the best interest of the deceased, should be allowed access to the record if this becomes necessary for the performance of their duties. This access to the records may be permitted only after presenting proof of authority. Neither relatives nor friends of the patient, not even the husband or wife, have any right to review a record unless authorization has been received from the patient. The authorization should always be in writing and should be filed with the record, together with a carbon copy of the information released.

It must be recognized that if a record is subpoenaed it must be produced in court. Usually a member of the records department represents the hospital in producing this record in court. It is recommended that a photocopy of the record be retained in the hospital and the original sent to the court. In the past, at times, the court has retained the original sent to the court, for an indefinite amount of time, or permanently.

If the patient should be readmitted under the care of a second physician, the second physician should be allowed access to the record of the previous hospitalization. If the patient is subsequently admitted to another hospital, a summary may be sent upon request from the hospital or the physician. In such an instance, an authorization is not usually considered necessary, as the information is being released in the interest of better patient care.

If the patient personally requests information from his own record, it is not always in the best interest of the patient that he knows all the details concerning his illness. It is a wise policy, in all such instances, to consult the physician. It is doubtful, however, whether the hospital would be justified in refusing the information to the patient even against the advice of the attending physician. It must always be kept in mind that laws differ from country to country and even from state to state, and therefore, one should acquaint oneself with the legal requirements of the particular state.

Impersonal document:
As an impersonal document, the record may be used for research or study. Such caution need not be exercised when it is used as personal document because it has no connection with the patient as an individual. Moreover, it is used in this manner only by physicians, house surgeons, undergraduate and postgraduate student, nurses and paramedical staff, all of whom are bound by the code of professional secrecy.

If the research is being done by a staff physician and is not for publication, it is not necessary to obtain the permission of the attending physician to use the record, although this is done as a matter of courtesy.

The medical record, as an order of business, is the property of the hospital. The personal data contained in the record are considered as a confidential communication in which the patient has a critical interest. It is compiled, preserved, and protected from unauthorized inspection for the benefit of the patient, hospital and physician. This is required by law in some states and by administrative practice in others.

When releasing any information, the medical record department must ascertain whether the record is to be used as an impersonal document or a personal document. If it is to be used as personal information, written authorization must be obtained from the patient or his authorized representative. An authorization for release of information should be honored only for the period of hospitalization covered by the dates on the authorization. If the record is to be used within the hospital for purposes of quality assurance, continuing education, research or other scientific investigations, permission is not necessary from the patient or from the attending physician, unless the information is to be published. In such an instance it is desirable to secure the consent of the attending physician.

Since the medical record itself must frequently be used as evidence in court, it can serve as a protection to the hospital physician and patient, only when it clearly shows the treatment given the patient, states the details of the attending physician, and dates when treatment was given. It must show that the care and service given by the hospital and by the physician were consistent with good medical practice.