January 17, 2019

QUESTION:       We recently learned that the medical board investigated one of our medical staff members after a patient called the hospital to request a copy of her medical records and, while doing so, informed our patient experience liaison that she had filed a complaint with the state board.  A little fact-gathering revealed that the board’s investigation was closed.  The practitioner showed us a letter from the board thanking him for his cooperation and informing him that the board was unable to substantiate the complaint.  What comes next for the hospital?  Do we just make a copy of the letter and put it in the practitioner’s file?  Since he was exonerated, do we even need to do that?


ANSWER:           It’s disappointing to learn AFTER THE FACT that one of your doctors has been under investigation by the state board, CMS, or any other government agency.  Many hospital and medical staff leaders may be hesitant to make “a big deal” about a failure to notify in a situation where, as here, the member provides evidence showing that the investigation went nowhere.

But, as usual, how you respond to information about the state board’s investigation of a medical staff member should depend on what your Medical Staff Bylaws and related documents say.  Do they require members to notify you if they are under investigation?  When?  Within a certain time frame?  Is failure to notify excused when the underlying matter has been closed with no “adverse” action by the regulatory body?  Obviously, it does not serve the interest of patient safety to require notification of investigations only after the outcome is known to the member, since such a policy would prevent the hospital and medical staff leadership from taking precautionary steps to protect patients, the hospital, and other practitioners during the pendency of the investigation (if such precautions were determined to be necessary).

At this point, it makes sense to at least obtain a copy of the letter the physician produced to evidence the fact that the investigation was closed.  Note that the closure of an investigation by the board due to lack of substantiating evidence is not equivalent to exoneration.  Therefore, hospital and medical staff leaders should at least consider whether any additional information should be requested from the physician (e.g., correspondence between the physician and/or his attorney and the state board regarding this matter) or directly from the state board.

Provided that the Medical Staff Bylaws or Credentials Policy required the physician to notify you of the investigation earlier, it also makes sense to refer this instance of non-compliance into the professional practice evaluation process for further review under the medical staff’s professional practice evaluation policy (or Credentials Policy or other document outlining peer review procedures).  If the practitioner has a long history of failing to comply with the Bylaws and other requirements of hospital and medical staff policies, then a significant response to this event might be appropriate (e.g., a written reprimand or “last chance” performance improvement plan).  If the practitioner is generally compliant and his or her actions indicate that this was mere oversight or a one-time poor decision (e.g., perhaps a conscious decision not to provide notification, but based on the practitioner’s rational embarrassment about being investigated or based on incorrect legal advice telling him he was not required to report), the response may be less substantial (e.g., a collegial conversation).

In cases such as this, a lot depends on the facts.  But, what we know for sure is that ignoring an incident like this is never the right approach.  Consistent application of and reminder of policies – even when done collegially and without a punitive tone – helps to establish the expectations of the hospital and medical staff.

Finally, one could argue that too much of the lip service that is given to the topic of notification revolves around what’s required and what’s not.  Consider including in your policies and/or guidance documents language making it clear that the hospital and medical staff expect all ambiguities to be resolved in the favor of patient safety.  After all, patient safety is the first priority:

Applicants and practitioners are expected at all times to be forthcoming and truthful with respect to their initial and ongoing qualifications for Medical Staff membership and clinical privileges and any concerns that have been raised regarding the same.  The hospital and medical staff agree that complete information is of the utmost importance to the credentialing and professional practice evaluation processes and, in turn, to patient safety.  To that end, when in doubt about whether disclosure is required, applicants and practitioners are expected to err on the side of making a full disclosure to the Hospital and/or Medical Staff leadership, as set forth in the Medical Staff Bylaws and related hospital and medical staff policies.

March 8, 2018

QUESTION:        We received a subpoena from an attorney requesting the medical records of a patient.  The attorney represents the plaintiff in the case, and the patient is the defendant.  We are not a party to the litigation and want to comply with the subpoena, but we don’t want to violate the Health Insurance Portability and Accountability Act (“HIPAA”) either.  Help!

ANSWER:            The regulations implementing HIPAA (the “HIPAA Privacy Rule”) require that certain conditions be satisfied before a covered entity, in this case a hospital, may disclose medical records in response to a subpoena.  Basically, these regulations require that a hospital receive “satisfactory assurances” that the patient has been notified of the subpoena and that any objections to the subpoena by the patient have been resolved.  Until the hospital receives these “satisfactory assurances,” it is prohibited by federal law from disclosing the medical records.

State law may also help here.  For example, the Pennsylvania Rules of Civil Procedure require a party in a lawsuit to serve a copy of a proposed subpoena on all other parties prior to issuing that subpoena to a third party (the hospital).  Also, the Rules state that a party that intends to serve a subpoena on a third party (the hospital) must file a certificate showing that it has notified other parties in the lawsuit of the subpoena.

So, as required by the HIPAA Privacy Rule, a hospital, or its attorney, should request that the individual who requested the medical records provide the hospital with documentation that indicates that the patient has received notice of the subpoena, has had an opportunity to object to it, and either no objections were filed or all objections have been resolved.  Once the hospital receives that documentation, it will be able to comply with the subpoena.

March 31, 2016

Some Medical Staff members have asked to add the following disclaimer to their medical records:

Please note that this dictation was completed with computer voice?recognition software.  Quite often unanticipated grammatical, syntax, homophones, and other interpretive errors are inadvertently transcribed by the computer software.  Please disregard these errors.  Please excuse any errors that have escaped final proofreading.

Is this a good idea?

ANSWER:            No.  Such disclaimers probably increase a physician’s risk of liability.

This specific issue was addressed recently by WPS GHA, a Medicare contractor.  It provided the following guidance:

Disclaimers Used as Part of Physician’s Signature

WPS GHA has recently been informed of a new trend in medical record documentation – that of using some type of disclaimer.  Examples include the following:  ‘Due to possible errors in transcription, there may be errors in documentation’; ‘Due to voice recognition software, sound alike and misspelled words may be contained in the documentation’; and ‘I am not responsible for errors due to transcription.’ Providers are responsible for the medical record documentation.  Disclaimers such as those above do not remove that responsibility.  The provider should verify the information is complete and accurate prior to attaching his/her signature.[1]  (Emphasis added.)

We agree that a disclaimer will not shield a physician from liability for errors in the medical record.  It does not matter if the error is caused by voice recognition software or a transcriptionist.  The physician’s signature on the record is the physician’s confirmation that the information is accurate and complete.  A disclaimer cannot be used to evade that responsibility.

The guidance from WPS GHA makes clear that disclaimers cannot help physicians.  In fact, there is also reason to believe that such disclaimers will actually harm physicians.  If a disclaimer is used, an injured patient may claim in a malpractice suit that the physician was too busy to review the accuracy of the entry, or simply was unconcerned.

All health care professionals know that transcription errors in the medical record can harm patients.  This may explain why juries have no sympathy or tolerance for physicians who would attempt to use a disclaimer to avoid responsibility for closely reviewing the medical record before signing it.

Not only are juries offended by these disclaimers, but they offer an easy target for malpractice attorneys.  The following comment was posted on a message board regarding this issue:

I called some attorney contacts I have on BOTH sides of the courtroom (just to get THEIR take on the situation).  The defense attorneys I contacted DON’T want the disclaimer anywhere on the note.  The plaintiff attorneys I contacted LOVED the idea and then proceeded to tell me how they would ‘rip the author of those notes to shreds’ EVEN IF NO ERRORS WERE FOUND IN THE NOTE! They had some rather interesting approaches on how to discredit the author simply due to the presence of a disclaimer on a medical note.[2]


[1]               http://wpsmedicare.com/j8macpartb/departments/cert/signature-guidance.shtml

[2]               http://sci.med.transcription.narkive.com/9N0C52Rt/inserting-a-disclaimer-in-a-medical-report