business of Medicine
Onboarding Advanced Practice Clinicians
August 1, 2019
Responding to subpoenas, requests for production of documents and search warrants
Patient’s medical records may also be requested by a subpoena or a request for production of documents. By law, the physician must comply with a subpoena or a request for production of documents, and in the time frame required.
Under HIPAA a covered healthcare provider or health plan may disclose protected health information required by a court order, including the order of an administrative tribunal. However, the provider or plan may only disclose the information specifically described in the order.
A subpoena issued by someone other than a judge, such as a court clerk or an attorney in a case, is different from a court order.
A covered provider or plan may disclose information to party issuing a subpoena only if the notification requirements of the Privacy Rule and state are met. Before the covered entity may respond to the subpoena, the Rule requires that it receive evidence t hat reasonable efforts were made to either:
- Notify the person who is the subject of the information about the request, so that the person has a chance to object to the disclosure, or to
- Seek a qualified protective order for the information from the court.
For further information on this topic, please refer to 45 C.F.R. § 164.512(e) and the Office of Civil Rights (OCR) Frequently Asked Questions.
When responding to a request as a non-party to a lawsuit, allow time (the length of time is specified by each state) for the parties in the law-suit to object to the record release through the court. The physician may also file an objection to providing information at or before the time specified in the subpoena or request for production of documents. This should be done through legal counsel. If an objection is filed, the physician shall not produce the records unless and until ordered by the court.
As a practical matter, physicians produce certified copies of medical records in lieu of originals. Include with the certified copies of the record, a copy of the subpoena and an affidavit by the person responsible for maintaining the medical records testifying to the identity and authenticity of the records, that they are true and correct copies and, as appropriate, that the records were made and kept in the regular course of business at or near the time of the events recorded by persons having knowledge of the information set forth. The court may still order the original record to be produced in order to determine the accuracy of the reproductions made. If the release of original medical records cannot be avoided, a chain of custody should be established that states who picked up the record, the date it was released, where the record was being taken, how long the record would be kept, when the record would be returned, the location of the record and who will have possession of the record. The pages should be numbered to help verify that the entire medical record is returned.
Since laws and specific requirements vary from state to state, policy-holders should consult with MagMutual Insurance Company when receiving requests for patient medical records pursuant to a legal notice, request made by an attorney, and court etc. if there are questions or concerns.
Generally, a search warrant is obtained by the police when investigating the commission of a criminal offense. A warrant is obtained by making an application to a magistrate. Evidence must be provided before the warrant is issued. The warrant may be issued to a named member of the police force or all members of the police force. If it is issued to all members of the police force, any member may execute the warrant. The warrant should state clearly the address that may be searched and the items sought pursuant to the warrant. The warrant authorizes the police to break, enter and search any premises named in the warrant, and to arrest the person having custody of the things named in the warrant. It is necessary to cooperate with the police who are executing the warrant.
Appropriate response to search warrants
- Inform management as soon as possible that you have been presented with a warrant
- Cooperate with the police who are executing the warrant – be courteous and act professionally.
- Ensure the warrant has been issued by the court. Note the person to whom it has been issued and the items that may be seized pursuant to the warrant.
- If the warrant has been issued to the police generally, any member of the police force may execute it. Otherwise, the officer named in the warrant must execute it. Monitor that only material named in the warrant is taken during the search. Object politely if police attempt to remove material that you believe is outside the scope of the warrant.
- Keep a list of all material taken in the search. If possible, keep copies of the documents.
- Do not undertake any routine or other shredding of documents or erasing of information from computers while the search is being undertaken.
- Keep notes of all requests made of the police during the search and their responses.
- Obtain legal advice concerning the search and seizure of material as soon as possible.
HIPAA privacy regulations permit the release of medical records pursuant to a search warrant (45 C.F.R. § 164.512 (e) & (f)), without prior notice to the patient and giving the patient an opportunity to object to the search warrant.
Other Law Enforcement Requests
Except in certain limited circumstances, physicians should not release a patient’s health information to a law enforcement officer without some legal process (e.g., subpoena or search warrant).
In most respects, law enforcement officers do not have greater authority to access patient medical information than any ordinary citizen does.
Under HIPAA Privacy Regulations, a physician may disclose limited health information without patient authorization in response to a law enforcement official’s request for the purpose of identifying or locating a suspect, fugitive, material witness or missing person. In this instance, the physician may disclose only the following information: (a) name and address; (b) date and place of birth; (c) social security number; (d) ABO blood type and rh factor; (e) type of injury; (f) date and time of treatment; (g) date and time of death; (h) description of distinguishing physical characteristics, including height, weight, gender, race, hair and eye color, presence or absence of facial hair, scars, and tattoos. HIPAA Privacy Regulations allow disclosure to law enforcement officers in certain other cases, as well. See 45 CFR 164.512.
Privileged Medical Records
As referenced in other parts of this Handbook, mental health records, AIDS confidential information or alcohol and drug abuse treatment records should not be released without specific and proper patient authorization patient or a court order signed by a judge commanding the physician to release such records. Such records are not only confidential like all medical records, they are considered privileged or subject to a higher degree of confidentiality. Thus they may not be released without legal waiver of privilege by the patient or a court order.
In-Camera Inspection of Medical Records
If a physician has received a subpoena regarding medical records and has concerns about violating a patient’s confidentiality or privilege the physician should consult with an attorney about complying with the subpoena, and consider asking the judge to conduct an in-camera inspection of the records. The physician would file a sealed copy of the medical records with the court clerk’s office, placing a notation on the outside of the envelope that the contents are “Medical Records of John/Jane Doe” subpoenaed under a specifically identified case (including case number) and are not to be opened without a court order directing such action.
The sealed medical records should be accompanied by a cover letter stating the physician’s reasons for declining to comply with the subpoena, requesting an in-camera inspection and asking the court not to release records to the parties without issuing an appropriate court order.
Copy and paste documentation creates a problematic defense
A middle aged man presented to his primary care physician’s (PCP) office with symptoms of panic attacks, intermittent chest and lower jaw pain. The patient was overweight, had hypertension, high cholesterol, an enlarged heart, drank alcohol daily, and smoked. A week later he called back with symptoms of shortness of breath, chest pain radiating to the neck, shoulders and jaw. The physician’s office advised him to go to local hospital’s Emergency Department (ED). In the ED, the patient’s EKG was abnormal, showed atrial fibrillation, evidence of septal infarct, marked ST abnormality, and possible inferior subendocardial injury.
The patient was discharged from the ED with a diagnosis of chest pain, unknown cause, and cardiac arrhythmia. Discharge instructions included to follow-up with the PCP in the morning, and to have a (stress) treadmill test.
Upon returning to the PCP, the patient’s blood pressure was 170/100. The PCP was aware the patient had been in the ED; she had the ED notes and discharge instructions. Her assessment was chest pain, unknown etiology, anxiety/depression, panic attacks, and atrial fibrillation. At this office visit, she prescribed Lanoxin 0.25mg daily and Glyburide 2.5 mg. No stress test was performed or ordered.
At his next visit to the PCP, two weeks later, the patient’s B/P was 150/90. The PCP now diagnosed insomnia, COPD, and diabetes mellitus. She prescribed Xanax 0.5 mg every 6 hours PRN x 100 and vitamins.
The PCP’s plan note read, “Call PCP or go to ED if signs/symptoms don’t improve. Discussed side effects and precautions about medicines; advised about low salt/low fat/low sugar diet, written material handout, also advised about daily exercise, injury prevention, self body examination, lifestyle modifications, reduction of stress and counseled about high risk sexual practices, family planning, domestic violence, substance abuse, addiction, etc. Follow-up in one week, or as needed. Call if no relief.”
This same plan note was repeated in the next twelve office visit record entries that followed for the next two years the patient was under this PCP’s care. No new medications were added to the patient’s regimen. No cardiopulmonary work-up, including a stress test, was ever performed.
The patient continued to follow up with his PCP as directed, complaining intermittently of shortness of breath, anxiety, depression and panic attacks. One evening, shortly after eating dinner, the patient collapsed. Emergency Medical Services found the patient on the floor, unresponsive. Resuscitative measures were unsuccessful.
On the death certificate the PCP listed the patient’s cause of death as cardiac-respiratory arrest, chronic obstructive pulmonary disease and cardiac arrhythmia.
It was alleged that the PCP deviated from the standard of medical care, and that this deviation led to the patient’s death.
Specific allegations against the PCP included:
- Failed to appreciate hypertension, high cholesterol, past MI and Diabetes as indications of increased cardiovascular risk;
- Failed to diagnose and measure the increased risk of MI, stroke and cardiovascular risk;
- Failed to inform and educate the patient
- Failed to initiate specific advice and treatment known to significantly decrease the risk of MI, stroke and cardiovascular death.
We were unable to secure expert support for the PCP. The case settled for a high dollar amount.
Risk Management Commentary & Advice
In general, the standard of care for determining medical malpractice is based on how a similarly qualified practitioner would have performed under the same or similar circumstances.
The PCP had no plausible explanation for why she did not work up the patient’s cardiac complaints or refer him out to a cardiologist for a stress test. She merely stated that she had advised the patient to find a cardiologist who could do an appropriate work-up. However, she did not document this conversation anywhere in his chart, she did not make a referral to a cardiologist, and she did not track for patient compliance over the two year period she was seeing the patient in his office.
- Documentation shortcuts available with Electronic Health Record systems are tempting for busy clinicians. The ability to have template-type documentation makes physicians more effective and efficient and is essential, but the inappropriate use of templates, such as “copy and paste," can be a problem. In this case, the PCP’s practice of “copy and paste,” or the pulling forward of information from past visits, appears to have resulted in some misrepresentation of each subsequent patient visit. Carrying forward information without careful review can cause contradictions in a patient’s chief complaint. Certainly, the integrity and credibility of this PCP’s record was affected by the documentation shortcuts she took. Physicians are encouraged to customize medical records to the greatest extent possible, even in a template system, so it's obvious to reviewers that they are not “carbon-copying or cloning” records. A detailed documentation of the patient's chief complaint, which should carry through to the physical exam and the history, should always be used to support decision making and medical necessity determinations.
- If the physician’s concerns don’t match the patient’s, the patient is likely to feel marginalized. If the physician’s decision process is not well documented, an allegation of substandard care is more difficult to defend. Clarifying the patient’s key concerns and his or her understanding of the diagnostic process can close any gaps between the patient’s expectations and his physician’s.
- Fully appreciating the circumstances surrounding an encounter is generally impossible without written evidence. Explaining why certain tests were ordered and not others is instrumental in understanding the disposition of the patient. Unfortunately in this case, the reasons for not pursuing a cardiology work-up in a patient with such high risk factors and ongoing symptoms cannot be well explained or defended.
- This patient was given instructions, including those specific to chest pain. However, patients may set the bar higher before they will go to the ED, even in the face of more troublesome symptoms. Patients may present to the ED more willingly if they’ve been properly instructed on how to appropriately respond to various symptoms or circumstances.
This case report is a composite of MAG Mutual Insurance Company’s case files. Any similarity to a specific case is both coincidental and unintended.
Failed physician-nurse communication, post-op sleep apnea, death
The patient suffered a detached retina. She was morbidly obese, had diabetes, and her sleep apnea was being treated with nightly nasal CPAP. Two days before surgery, during her preoperative evaluation with a locum tenens physician in her PCP’s office, she reported a 3–4 day history of phlegm-producing cough and intermittent shortness of breath. Her EKG was within normal limits with no acute changes. The physician diagnosed her with acute bronchitis and prescribed antibiotics and a bronchodilator. He also sent the patient’s pre-operative report to her surgeon, and discussed all relevant findings. Because the patient’s procedure was scheduled on an out-patient basis, the physician did not order post-op CPAP.
During the patient’s pre-operative interview, the anesthesiologist noted the patient’s acute bronchitis and sleep apnea. No respiratory assessment was documented.
Surgery was performed without complications. Given the patient’s history of sleep apnea and the late afternoon surgery, her daughter requested that the patient be admitted overnight for observation.
6:30 p.m. Stable, alert, and oriented, the patient was transferred to the floor. The floor nurse received the patient without a report or any mention of her sleep apnea.
7:00 p.m. Shift change
8:00 p.m. The patient—one of eight patients the incoming nurse was responsible for—complained of eye pain and was given Demerol (PO).
8:30 p.m. The patient vomited and the nurse assumed that the pain medication had been expelled. Despite a clear order to contact the physician for uncontrolled eye pain, the nurse administered an antiemetic and another dose of Demerol (IM) without notifying the physician.
9:30 p.m. The patient again complained of inadequate pain control. The nurse contacted the physician, who ordered a different antiemetic and pain medication. After receiving both medications and being encouraged to lie down, the patient appeared comfortable and began to fall asleep.
11:45 p.m. Upon checking the patient and finding her to be lethargic with cool, moist skin, the nurse called the lab to draw her blood sugar. While waiting, the nurse gave the patient a glass of orange juice. Her blood sugar was 278 and she seemed more alert.
12:45 a.m. The patient again appeared lethargic but was arousable. The nurse, concerned for her patient, asked the charge nurse to assess her. He felt the pain medications had taken effect and the patient was sleeping comfortably; the physician was not contacted.
1:15 a.m. The nurse found the patient without a pulse or respirations and called a code. The patient was resuscitated, but upon transfer to an ICU at a neighboring hospital, she was declared dead.
The patient’s daughter sued three anesthesiologists, the attending surgeon, the ophthalmology fellow, the nurse anesthetist, and the nurse caring for her the evening after her eye surgery, alleging negligence for performing a non-emergent surgical procedure in the presence of an acute respiratory infection and failing to note the patient’s sleep apnea, resulting in her death.
After unfavorable expert reviews, the case was settled for a very large amount, allocated evenly among two physicians and one nurse.
Risk Management Commentary
- A patient’s overall health status should be taken into consideration when scheduling non-urgent surgeries
- Failure to make appropriate clinical provisions can lead to inadequate post-operative monitoring.
- Reporting key information about a patient’s medical history from one provider to the next can guide important medical treatment decisions
- The physicians evaluating this patient did not consider postponing this non-urgent surgical procedure until her respiratory status had improved. Potential risks to a patient’s overall health should warrant more consideration when scheduling non-urgent surgeries. Rescheduling may be inconvenient for the patient and the surgical team, but a decision to proceed with the surgery has to be defensible.
- The anesthesiologist failed to perform a key element of the pre-operative physical examination. Failure to complete (and document) a pre-operative physical assessment, including cardiac and respiratory status, could be perceived as a gap in diligence and is a hindrance to defending an allegation of malpractice.
- The orders written for this patient were too narrow to cover the realm of possible clinical needs of someone with a history of multiple health problems. Most critically, the postoperative orders did not adequately address monitoring the patient’s respiratory status. Care plans should go with the patient across care sites and feature prominent clinical risk issues, in order to keep providers aware of complicating factors that increase risk to the patient. Multiple providers and disciplines must maintain awareness and ensure monitoring of serious clinical risks before, during, and after treatment. Electronic order entry and medical record systems with decision support tools that flag concerns and highlight significant aspects of a patient’s problem list (and also prompt recommended actions) offer promise—where available.
- The nursing staff’s lack of awareness regarding critical aspects of this patient’s medical condition (e.g., history of sleep apnea, use of CPAP, and recent acute bronchitis) ultimately impeded the care she received. Risk is reduced for a patient transferring from one location or service to another when a report noting key information about his or her medical history is provided to the receiving caregiver. Such information can guide decisions, e.g., the regulation of medications provided to the patient, rooming the patient closer to the nurses’ station (allowing for more frequent observation), or flagging the need for special care.
- The patient’s casual admission for overnight post-op observation appears to have been subject to numerous (errant) assumptions. Her uncontrolled pain was not promptly reported to her physician and she received narcotics in excess of those originally ordered. Casual admissions to holding facilities can be dangerous in the absence of specific notes/ orders regarding any pre-existing health conditions. Likewise, the nursing staff can minimize the risk of an adverse event by monitoring each patient through continual clinical assessment and reporting any deterioration in his or her condition. Failure to recognize the (sometimes subtle) significance of the physician’s orders (e.g., when to contact him or her) places patients at unnecessary risk for an adverse event.
The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.