Patients' Charts Court Defines Patient's, Provider's Rights And by z7jsd0


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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

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