Handling Medico Legal Records

Introduction

• 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. Each medical record reveals patient-centered information.
• The patient is the recipient of the medical care, which is offered to him by a team, that usually consists of the doctor, the nurse and the paramedical worker. The team offers this care to the patient in the hospital. 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.
• 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 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.
• When the hospital admits a patient, it enters into an indirect contract to render services necessary in the care and treatment of the patient. This necessitates keeping a chronological record of the care and treatment rendered by the personnel.

Medical records as legal document

Apart from the uses to which medical records are put in the normal operation of the hospital, their importance from a legal standpoint cannot be overemphasized.

The records are neither the property of the patient nor the physician but rather the property of the hospital. The physician has no legal right to determine who shall be permitted to examine the record, although his permission may be sought as a matter of courtesy. Unless patient is mentally incompetent, others do not have the right to examine the record.

As in the case of professional relationships, communications between a patient and his physician are regarded as privileged and confidential. The privilege extends to hospital records which contain information that enables a physician to treat the patient. It follows, therefore, that the records should be made available with the consent of the patient and that such consent should be obtained in writing.

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 on 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 unauthorised 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 patient's permission. However, the lawyers and their legal representative, to act in the best interest of the deceased, should be allowed to access the record 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 recognised that if a record is summoned it must be produced in court. Usually a member of the hospital or medical records department represents the hospital in producing the record in court. It is recommended that a Photostat of the record should be retained in the hospital and the original sent to the court. In the past, at times, the court had retained the original sent to the court, for an indefinite amount of time, or permanently. In such occasions the photostat copy fulfils the purpose.

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 hospitalisation. 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 authorisation 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 himself with the legal requirements of the particular state.

Impersonal document

As an impersonal document, the record may be used for research or study. Such cautions need not be exercised as 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, under-graduate and Post-graduate 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 protectable interest. It is compiled, preserved, and protected from unauthorized inspection for the benefit of the patient, hospital and physician. When releasing any information, the medial 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. 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 is frequently 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 to the patient, by whom given, and when given. It must show that the care and service given by the hospital and by the physician were consistent with good medical practice.

Medical record in court

The presentation of information from medical records as evidence in a court is quite proper. Indeed the record is maintained not only to provide information for medical and administrative purposes but also because it contains data of the highest value to individuals and organisations having a legitimate need to know its contents. The record is an unbiased chronological report made in the regular course of business of the hospital.

1. Summon

A summon is a court order (Fig.7.1). It is designed to cause a witness to appear and give testimony. If the order is neglected by the receiving person he will be under pain of penalty for failure to do so. It should be noted that summon requires the presence of the witness to come with certain specified records. The person to whom summon is issued may be considered to have committed contempt of court if he does not honour it, or present a satisfactory explanation of the reasons why it was not honoured.

2. Preparation of medical record for court

When preparing a medical record for court room scrutiny, the following steps and procedures will be useful:

• As soon as you receive summon, the medical record should be checked to make sure it is complete and all reports are present
• Material not of a medical nature such as letter of correspondence should not be fastened into the record or folder
• Check the record to make sure it is complete, signatures and initials are identifiable in each sheet containing the patient name and number
• Before taking the medical record from the hospital to court, each page should be numbered in ink; the total number of pages should be recorded on the folder
• To avoid the necessity of leaving the original record, many medical record technician Photostat the record and take the photocopies together with the original medical record when answering to a summon
• When this has been done, many trial judges will accept the photocopies in lieu of the original medical record after the latter has been properly identified

Other legal aspects

Each patient has the right to decide for himself what treatment, therapy or procedures will be performed on his person. Once the alternatives have been made clear, an intelligent decision can be reached to consent to or refuse suggested remedies.

A written authorisation for each surgical procedure or operation to be performed should always be obtained from the patient, or appropriate representative if the patient is a minor or otherwise legally incompetent. To be valid, such a consent or authorisation must be an informed consent.

The patient or representative should include in writing that he has been told what is to be done, the risks involved, and the consequences of the procedure. One is the general consent to medical and hospital treatment to be signed when the patient is admitted to the hospital. These two forms used together should meet the requirements of an informed consent so long as it is clear that the responsibility rests with the physician and surgeon to give the patient sufficient information on a level he can understand to allow him to make an informed judgment.

Children under the age of minority cannot generally give consent to their own medical treatment. A parent or legal guardian should sign the consent. It is good practice to obtain the consent of the parents of any minors who is to receive medical or surgical treatment.

Patient leaving against medical advice

If a patient is discharged against the medical advice of the doctor, the signature of the patient or nearest relative should be obtained in a prescribed form or in the progress/nurses notes. The patient or nearest relative should be informed of the consequences or risk involved and the hospital is not responsible for any adverse effects.

In the event the patient or nearest relative refuses to sign, the patient record should be signed by the physician with a written statement and duly witnessed setting forth the circumstances, reasons, and warnings against such premature departure without the advice of the doctor.

Patient absconding from ward

Information about absconding patients must be recorded in the medical records file with details concerning the date and time the patient was discovered to be missing from the (room or bed) ward. The treating doctor should note down the time and date of incident and sign the medical record accordingly. The security officer and the accounts manager should be informed about the incident. The matter must be communicated to the nearest police station.

Permission to leave the hospital temporarily

As a policy, any patient, who is hospitalized, should not be permitted to leave the hospital. At the discretion of the treating doctor the patient may be permitted to leave the hospital temporarily for a period of not more than 12 hours. If permitted and the patient fails to return within 12 hours, he or she should be treated as discharged and the necessary entries made in the record with proper intimation to the security officer and accounts manager.

In case of patients, who return according to schedule, necessary entries of date and time of leaving and returning to the ward should be made in the patient file with prior intimation to the security officer and accounts manager.

Medical record retention policy

It is a rare case in which the medical record technician has ample space for storing medical records. For most practitioners, there is a never-ending battle against overcrowded files. The alert medical record professional has to develop a formalized plan for record retention schedule for the automatic transfer of ineligible records for inactive storage and later destruction of the medical record itself. This alleviates the problem of deciding what to do with the overcrowded files once a year.

The length of time a medical record is retained in active and inactive storage will greatly depend on the type of health care facility and the activity of the medical staff. In developing a record retention policy, a health care institution must be guided by its own patient care and research activities, taking into consideration the possibility of future legal action by patients. Based on these factors, a decision should be made regarding the age of record before it is placed in inactive or alternate medical record storage in another area of the facility.

Inactive Medical records

A definite plan for handling inactive records must be established in order to provide filing space for a continuously expanding active file. Practically speaking, the chief criterion for determining record inactivity is the amount of space available in the department itself for the efficient storage of the newer medical records.

In one department, records of discharged persons which are five year old may be designated as inactive, whereas in another department with an acute shortage of filing space, inactive records may be defined as records only one or two year old. If there is no more space for active record storage, an effort should be made to systematically retire older records to inactive status at the same rate as new records are being added.

Inactive records can be stored in another area of the facility; they can be commercially stored; or they can also be destroyed in compliance with record retention statutes. Storage for inactive records may be established in areas of the facility physically separate from the medical record department. As old records are removed from the active files, transfer slips to the inactive files should replace them. This will eliminate unnecessary searching in the inactive storage area.

Destruction of medical records

The destruction of inactive medical records by shredding or burning has gained popularity in recent years as health care institutions realise that medical records with longer age have very little to contribute to current patient care and research activities.

A hospital or other health care institution is seldom requested to produce medical records older than ten (10) years for clinical, scientific, legal, or audit purposes. Accordingly, it is recommended that complete patient medical records in health care institutions usually are retained, either in the original or reproduced form, for a period of ten years after the most recent patient care usage. After this period, in the absence of legal considerations, such records may be destroyed.

Consumer protection

Since 1986, the consumer protection act came into existence; the health care providers including doctors, nurses, paramedics and hospital administration have to be meticulously careful in understanding the full responsibilities that they have to fulfill in the legal and administrative sense. This becomes vital to ensure whatever the services rendered have to be properly documented in patient records to safeguard the staff involved in the consumer service. After enacting the consumer protection law which has brought medical service also under its purview innumerable negligence cases been brought out against medical professions, From health point of view the paying patient who receives health services from clinics, health institution, nursing home, etc. is considered to be the consumer and the service is defined as medical/health service of any type received in any recognised health institutions, clinics, nursing homes from a qualified medical, nursing, paramedical professional by a patient.

Medical negligence

The medical negligence can be distinctly divided into two categories primarily due to incompetence and mere negligence, secondly due to non-maintaining organised patient record. Medical malpractice under the law is more than a mere error in treatment or diagnosis. The medical record is the basic reference document used in medical malpractice litigation.

A well-organised, well-written record is the best defense for the competent health care provider. The poorly written, disorganized record is strong evidence of an incompetent health care provider. The poorly kept medical record is not in itself proof of negligence on the part of the health care provider, but it is proof of substandard care.

A medical man rendering professional service for consideration is liable under Consumer Protection Act , if he falls short of the standard of a reasonably skilful medical person in his field. The Supreme Court has laid down that whenever a patient approaches a practicing medical professional, his responsibility is not to completely refuse because the patient's problems are unrelated to his speciality, but he has to provide a minimum possible care or consultation or treatment and refer the patient to the appropriate medical facilities and document the episode.

Medical malpractice

Medical malpractice litigation is built around the medical record. The medical record provides the primary objective record of the patient's conditions and the care provided. Records are particularly important for a physician's defense. It is the doctor's responsibility to keep the medical records to prove that the injuries were not due to negligence.

If the record is incomplete, illegible, or incompetently kept, this is the doctor's failure. While courts and juries usually give a doctor the benefit of the doubt on unclear matters, this does not extend to ambiguities created by incompetent record keeping.

Medical professionals are expected to exercise and provide reasonable degree of skill and knowledge and also exercise reasonable degree of care in treating patients.

Service rendered free of cost

A medical practitioner rendering professional service free of charge has no obligation under the Consumer Protection Act 1986.

An unreasonable patient is not a consumer for availing of medical services free of cost.

The patient undergoing medical treatment in a hospital providing the service of doctor free of cost is not a consumer.

Summary

The medical record is the property of the hospital, while the information contained in the record is considered as a confidential communication in which the patient has a property interest. It is compiled, preserved, and protected from unauthorised inspection for the benefit of the patient, hospital, and physician. When pages and pages of data are written in the interest of the patient's treatment, to someone else it may mean a waste of paper. But, it is obvious that each statement made in the hospital medical record is a relevant fact which can be produced as evidence in a court of law. When releasing any information, the medical record department must ascertain whether the record is to be used as an impersonal document or personal document. If it is to be used as personal information, written authorisation must be obtained from the patient or his authorised representative. If the record is to be used within the hospital for purposes of quality assurance, continuing education, research or other scientific investigation, 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 to the patient, by whom given and when given. It must show that the care and service given by the hospital and by the physician were consistent with good medical practice. By the same token, the record may prove to be a potent weapon against the hospital or physician in an action by the patient. Any deficiency which indirectly leads to negligence and malpractice could be prevented and minimised the risks to the patient and protect the doctors from malpractice suits.

Key points to remember

• The hospital compiles and keeps medical records for the benefit of the patient, as well as the protection of the hospital and physician.
• The records are neither the property of the patient nor the physician but rather the property of the hospital.
• 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.
• 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 patient's permission
• As an impersonal document, the record may be used for research or study. Moreover, it is used in this manner only by physicians, House Surgeons, under-graduate and Post-graduate student, nurses and paramedical staff, all of whom are bound by the code of professional secrecy
• The record is maintained not only to provide information for medical and administrative purposes but also because it contains data of the highest value to individuals and organisations having a legitimate need to know its contents
• A summon is a court order designed to cause a witness to appear before a specified court or officer at a specified time and give testimony
• A written authorisation for each surgical procedure or operation to be performed should always be obtained from the patient, or appropriate representative if the patient is a minor or otherwise legally incompetent.
• The paying patient who receives health services from an health institution is considered to be the "consumer" and the" service" is defined as health service of any type received in any recognised health institution from a qualified medical, nursing, paramedical professional by a patient
• A well-organised, well-written record is the best defense for the competent health care provider. The poorly written, disorganised record is strong evidence of an incompetent health care provider

Student exercise

Answer the following

1. What do you mean by confidential communication? Explain the circumstances in which the medical record is used as a Personal and Impersonal document?
2. List the steps taken in preparing a patient's medical record for entry into the court proceedings in response to a summon?
3. Explain the importance of getting the informed consent and the operation consent from the patient? What legal problems may arise when we fail to do so?
4. What is medical negligence? And the role of consumer protection act in such an occasion?
5. Explain how will you inactivate or dispose medical records based on the policy of your hospital?