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December 1998 Volume 6 Number 12
Patients’ Charts: Court Defines Patient’s,
Provider’s Rights And Responsibilities.
he Supreme Court of Con- examine the slides in the community
necticut recently took the hospital’s pathology lab. The hospital
opportunity to review in de- also agreed to provide copies of all writ-
tail the legal principles which ten materials in the chart.
govern a patient’s or patient’s represen- Without first filing a malpractice
tative’s rights vis a vis the records and suit, the patient sued the community
other materials contained in a patient’s hospital for possession of the original
medical chart and the healthcare pro- earlier Pap smear slides. The court ruled
vider’s corresponding responsibilities. the community hospital had already
The patient in this case was diag- done all it had to. It was proper to ref-
nosed at a major university teaching use the patient’s demand for possession
hospital with stage IB endocervical ade- of the original Pap smear slides.
nocarcinoma in 1995. Her earlier Pap According to the court, the law al-
smear slides obtained at a community lows a patient, a patient’s physician or a
hospital from 1993 to 1995 were re- patient’s legal representative to examine
quested and sent to the university hos- any and all materials contained in a pa-
pital pathology department, and then re- tient’s medical chart. This includes
turned to the community hospital. original pathology specimens, pathol-
The earlier slides contained highly ogy slides, x -ray films, lab specimens,
atypical endocervical cells, which may physician’s notes, reports, correspon-
have meant the adenocarcinoma diagno- A patient or a patient’s physi- dence, bills, insurance forms, etc.
sis should have been made at the com- cian or attorney can examine The patient does not have to first
munity hospital as early as 1993. original notes, films, slides, file a malpractice suit against the
The patient retained an attorney to reports, etc., and can demand healthcare provider to be entitled to ac-
investigate the possibility of suing the copies of materials from the cess to the materials contained in the
community hospital for malpractice, for chart that can be copied. patient’s medical chart.
failing to read the Pap smear slides cor- A healthcare provider can Before a malpractice suit can be
rectly and catch the carcinoma earlier. and must retain physical cus- filed many states now require a certifica-
The attorney demanded possession of tody of original notes, films, tion along with the suit papers that there
the original earlier Pap smear slides. The slides, etc., in the patient’s has been a diligent pre-suit investiga-
community hospital agreed to let the at- chart. tion to ascertain that valid grounds exist
torney see the slides and to let the attor- SUPREME COURT OF CONNECTICUT, 1998. for a lawsuit. In some states it is r e-
ney’s forensic pathologist come in and (Continued on page 2)
Inside this month’s Patients’ Charts/Rights And Responsibilities
Freedom Of Speech/Retaliation - Reporting Violations/Retaliation
issue ... Whistle-Blower/Retaliation - False Imprisonment/Alcohol Rehab
Abuse Of Vulnerable Adult/Psychiatrist/Nurse’s Duty To Report
December 1998 Post-Operative Staph Infection - Patient’s Fall
New Subscriptions: Page 4 1998 Subject Index
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Patients’ Charts: Patient’s, Provider’s
Rights And Responsibilities. (Continued)
(Continued from page 1) subpoena or even state a reason for desir- but belong to the healthcare provider.
quired that the claim be submitted for out- ing access to the chart. It is not for a The court noted that healthcare pro-
of-court arbitration before suit can be filed healthcare provider to demand a reason viders are required by law to keep original
in court. why access to the chart is being sought, or records and pathology materials, for vari-
States whose laws impose pre-filing to judge the appropriateness of the pa- ous reasons. Even though the requirement
prerequisites for healthcare malpractice tient’s or patient’s representative’s motiva- for providers to retain records was set up
suits impose penalties against patients and tion for seeking access to the chart. to protect patients whose future care pro-
their lawyers for failing to follow those pre- A patient, a patient’ physician or a pa- viders may need access to their records, it
requisites. Most commonly, the healthcare tient’s legal representative is entitled to is not up to a patient to dispense with the
provider has the right to have the suit dis- copies of materials that can be copied, in- provider’s obligation to retain the patient’s
missed if the pre-filing prerequisites were cluding x-rays and scans. Copy expenses records just because the patient asks for
not followed. This is true also if a certifica- are the patient’s or patient’s representa- them.
tion as to the validity of the claim has been tive’s responsibility. In general, providers It is important to note that a patient or
filed as required, but the certification, by can charge reasonable clerical fees and per- patient’s representative has the right to ac-
the attorney or an expert witness, has no copy duplication fees. Each state has its cess the original chart materials, and the
factual basis. own specific rules setting out how much right to copies of materials that can be cop-
The court insisted that a healthcare providers can charge. ied. These are two independent rights.
provider must allow a patient or the p a- It was not an issue in this case, but the A patient has the right to copies of
tient’s representative the opportunity to in- court’s opinion cautions healthcare provid- what can be copied. However, it is not per-
vestigate a possible malpractice claim. ers about patients who are making disabil- missible for a healthcare provider to substi-
There may not be grounds for a suit. ity and industrial insurance claims. tute copies for the originals. A patient or
But if the healthcare provider has not a l- Patients may have the right to copies of the patient’s representative cannot be brushed
lowed the patient or the patient’s represen- medical records they need to pursue dis- off simply with a copy of the chart. There
tative access to the patient’s chart before ability or industrial insurance claims at a re- is a right to come into the healthcare facility
suit is filed, and it turns out there were no duced cost or at no cost. Providers must and look at the original materials. It is pos-
grounds for a suit, it is possible a court will consult their own legal counsel to make sible that the person making copies has left
not penalize the patient or the patient’s at- themselves aware of how their state laws out a page inadvertently, or misunderstood
torney for filing the groundless suit if the cover this special circumstance. his or her instructions and not felt it impor-
healthcare provider forced the patient to Although the issue did not come up in tant to copy lab reports or pharmacy order
file a suit just to be able to subpoena the this case, other courts have decided that slips, or whatever, under a mistaken belief
chart to see if there are grounds for a suit. using an outside photocopy vendor, rather that only certain things are important
The downside is that there may be than making copies of patient’s charts in- enough to be copied.
grounds for a lawsuit, as it appeared in this house, is not a violation of a patient’s right It is also possible there have been era-
case. to medical confidentiality. sures or other changes in the chart which
If a patient has filed a malpractice suit, Certain materials cannot be copied. have been done with a more sinister moti-
the patient’s attorneys can subpoena the That was the core issue before the court in vation, and, if so, that is something the pa-
records or other materials they desire. this case. The court ruled, however, that tient has the right to know about.
When a subpoena is presented to a the fact that original pathology slides can- When a patient or patient’s represen-
healthcare provider, the provider must com- not be copied does not change the rules. tative comes to view the chart, the person
ply with the subpoena or send the pro- A patient or patient’s representative is still can be seated in a designated area and
vider’s own attorneys to the court under entitled to access to examine them, but the closely supervised while in possession of
whose authority the subpoena was issued originals are to stay in the custody of the the chart. As a matter of courtesy, a repre-
to contest the validity of the subpoena. healthcare provider. sentative may be given access to an x -ray
There are no safe grounds for lay persons The court expressly rejected the argu- viewing box. In this case the patient’s at-
untrained in the law to second-guess a ment that Pap smear slides or other pathol- torney’s medical expert was given permis-
court subpoena without guidance from le- ogy specimens that were once part of the sion to use the hospital’s microscope to ex-
gal counsel. patient’s body are the patient’s personal amine the Pap smear slides, which the court
A patient or patient’s representative property. The court ruled that once ob- indicated was appropriate and was all that
seeking access to a patient’s healthcare tained by the healthcare provider these ma- was required of the hospital with respect to
chart does not need to file a lawsuit, have a terials are no longer the patient’s property, the slides. Cornelio v. Stamford Hospital,
717 A. 2d 140 (Conn., 1998).
Legal Eagle Eye Newsletter for the Nursing Profession December, 1998 Page 2