The practice of medicine has undergone a metamorphosis that has materially changed “the increasing gap between what doctors have traditionally been trained to do and the realities of modern clinical practice.”1 This article will examine these developments and offer guidance about the recent laws involving the access of a patient’s medical chart and the nuances of electronic medical records.
THE PATIENT’S CHART
The medical chart is an essential component of a patient’s care and the determination of any medicolegal disputes.2 This documentation sets forth the history of medical care rendered so that all health care providers “can continue to provide the best possible treatment for each individual.”3 A properly detailed record will help the health care provider in recreating what happened at those earlier visits.4 A medical record is also maintained to satisfy the different legal and ethical mandates required by the governments, regulatory agencies, accrediting bodies, and hospital administrations.5
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Electronic Medical Records
Historically, a patient’s chart was kept in a paper format located in the health care provider’s office or a medical records department at a hospital.6 Paper records do not require extensive training to maintain and can be customized by each health care provider.7 In practice, these charts were often unwieldly, disorganized, unreadable, and had no backup system.8
Medicine underwent a tumult in 2009 with the enactment of the Health Information Technology for Economic and Clinical Health Act (HITECH).9 This law required the meaningful transition of the patient’s chart to an electronic format by January 1, 2014, for health care providers to stay qualified to obtain Medicaid and Medicare reimbursement.10 The impetus for this change was to “improve quality, safety, efficiency, and reduce health disparities, engage patients and family, improve care coordination, and population and public health [and to] maintain privacy and security of patient health information.”11
An electronic medical record (EMR) is a digital adoption of the paper chart containing “a patient’s medical health information” including “sensitive and protected data such as a person’s medical past, medications, and test reports that only approved personnel can retrieve.”12 While a paper chart cannot be immediately shared with others, EMRs permit third parties to see patient medical records at any time.13 The EMR also promotes efficiency, improves treatment, and allows for self-directed care and home supervision.14 Presently, about 90 percent of office-based physicians employ EMR systems.15 Nevertheless, various EMR obstacles can retard the health care providers’ capacity to concentrate on patient care, hinder communication, and harm the patient-doctor relationship.16
Obtaining Medical Records—HIPAA
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)17 required the creation of national standards to protect patient health data from being disclosed without the person’s consent or knowledge.18 The law also gives patients the ability to review and secure a copy of their chart and demand corrections to their medical records.19 Accordingly, the US Department of Health and Human Services (HHS) promulgated a HIPAA Privacy Rule (Rule) to enforce the mandates of the legislation.20 This Rule sets forth the standards for the use and disclosure of a person’s protected health information (PHI) by parties subject to the Rule known as “covered entities.”21 The Rule establishes uniform standards on how covered entities, health care clearinghouses, and business associates reveal and maintain PHI to protect patients’ records while providing health care services.22
The requirements to obtain a patient’s medical records will differ based upon whom the attorney represents. A patient’s counsel merely has to provide a signed authorization supplied by the client that satisfies HIPAA’s mandates and appropriate state laws.23 Other counsel, however, have a much more difficult task. Health care providers may require a subpoena or court order before releasing the requested information. While a subpoena cannot be disregarded, covered entities are warned not to provide PHI without protecting a patient’s privacy and confidentiality.
A key element of the statute is that a covered entity may only divulge the “minimum necessary” information to fulfill the request for medical data.24 This mandate means that a covered entity must take reasonable steps to disclose “only the minimum amount of protected health information required to accomplish the intended purpose of the use, disclosure, or request.”25 Unfortunately, the phrase “minimum necessary” is not well-defined, thus producing confusion. This vagueness requires a covered entity to ascertain what materials to release and the efforts that should be utilized to limit the disclosure of materials.26 The covered entity’s decision as to what constitutes the minimum necessary information should be premised upon a reasonable justification standard and the technical skills of the covered entity and focused on privacy and security concerns.27 This means that counsel who requests “any and all records” of a patient may trigger an objection from the health care provider since this type of broad request may not identify the information in a specific and meaningful fashion.
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The Chart’s Organization
The EMR should contain the same information as the paper chart, including diverse sections that set forth the relevant facts gleaned from patient encounters and telephone calls.28 However, some parts will be combined, repeated, or not printed out.29 The printed account of the EMR will not be the same as what is shown on the computer screen, and the layout of the records may differ premised upon the doctor’s specialty and software used.30
Many record-keeping schemes are created for a particular health care provider, and each has an idiosyncratic operator interface for producing a medical record.31 This diversity makes it problematic for counsel to gain a comfort level when analyzing a digital chart. An electronic record copying system may also vary based upon the needs of a department or medical specialty.32 For example, radiology may use different software than other departments in the medical facility, and the staff may employ a system unlike the one used by physicians.33
One would think that the conversion to a digital format would eliminate the need to decipher a physician’s illegible handwriting. Surprisingly, that is not always the case. Not all health care providers converted to EMRs, and older medical records continue to be in a handwritten format. Physicians also write notes that are understandable only by themselves and not focused on how third parties may interpret their comments.34 Needless to say, illegible notes can have weighty repercussions on a patient’s health and present unfavorable medico-legal consequences.35 These factors can raise risk management apprehension, accreditation issues, enlarged audit risks from public and private payers, and medical malpractice concerns.36 The National Academy of Medicine has reported that doctor’s unreadable notes result in about 7,000 deaths annually.37
Several states have remedied this problem by passing remedial measures to fix this construct. For example, Pennsylvania has crafted a regulation that mandates a health care provider to “maintain medical records for patients which accurately, legibly, and completely reflect the evaluation and treatment of the patient.”38
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
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