Saturday, July 7, 2012

Whose Charts Are They, Anyway?

     "I want my medical chart!" patients demanded after the FBI raid.  "Those are my medical records, and I want them back!"
     Some of the patients needed to find a new doctor immediately following the raid, because I had closed my clinic indefinitely (which turned out to be for two weeks) to figure out what to do.  Some were just livid, on principle, that their charts had been confiscated.
     "Whose charts are they, anyway?" they wanted to know.
     As it turns out, ownership of medical records varies from state to state.
     According to Section 456.057 of the Florida statutes, medical records are the property of the medical provider or facility that prepares them.  The statute specifically grants ownership to the healthcare practitioner who generates the record, while ensuring that patients have the right to access and obtain copies of their records upon request.
     "The interest of the patient is paramount in the practice of medicine and everything that can be reasonably and lawfully done to serve that interest must be done," states AMA Opinion 7.01, "...including making a patient's medical records promptly available on request to another physician treating the patient."  In Florida a patient has a legal right to obtain copies of his records and they are by custom provided free of charge if needed for continuity of care.
     In the past copies of my patients' clinic records were provided immediately upon request, or within a few days if the pages were numerous.  We receive requests for records from many sources every day:  the Social Security Disability office, Workers' Compensation, or insurance companies who hold our payments until hard copies of records are sent.  Sometimes lawyers request medical documents for a case that's in litigation.  Specialists need them to understand our shared patients better--cardiologists ask for stress test or echocardiogram results;  endocrinologists want labs and thyroid ultrasound reports;  gynecologists need Pap results and pelvic ultrasound images;  rhematologists ask for bone densitometry images.  The Health Department, WIC, public school systems, college admissions offices, and summer camps need copies of physicals and lab work for enrollment in their programs.  
     Many charts contained past records from prior offices, including Hawthorne Medical Center, my Family Practice clinic until March 2009, when it was purchased and quickly brought to ruin by the new owner.  (That's a story for an upcoming post.)  Some of my patients' records were not created by me but had been obtained from other offices and protected at mine--I was the "custodian" for these records.  My patients relied on me to keep their charts safe and protected under HIPAA, the 1996 regulation enforcing under penalty of law a longstanding tradition of maintaining patients' medical information under the strictest confidentiality. 
     "Seize" (American Heritage Dictionary):  1.  To grasp suddenly and forcibly.  2.  To possess oneself of (something).  3.  To take into custody; capture.  4.  To take quick and forcible possession of; confiscate.  5.  To overwhelm physically.  6.  To put (one) in possession of something.  6.  To vest ownership...
     The FBI had seized about 3,000 medical charts, as well as hundreds of confidential personnel files.  We didn't know who owned the charts now.  The federal prosecutor told my lawyers that I was still responsible for the charts, even though I didn't have access to them.  I was still responsible, they said, for the maintenance and distribution of records, and for acting on the content of those records. 
     While we felt certain we could reassure patients that the government would honor rules about privacy, we couldn't say where their charts had gone or when they would be returned.   The federal agents had told us, in the hubbub of the raid, that the medical records would probably be returned within six weeks, and we believed them.  There was a rumor that they had been moved to Tampa.  Later we discovered they were somewhere in Tallahassee.  
     How long could it take the FBI to scan these vital documents into a computer file?  If the records could be returned on a zip drive we would at least have information from them in the midst of a crisis, or in advance of a patient's scheduled appointment. 
     But the charts were not returned in any form, not six weeks later, and not now--more than a year after the raid.  At first when patients asked for their records we sent the requests straight to the FBI.  Then, to save time, we gave patients the phone number for the FBI.  But the FBI refused to communicate directly with my office or with patients.  Here was the procedure the FBI insisted we follow:
       1.  The patient should come to our office and sign a HIPAA-approved release requesting specific medical records.
       2.  Our office should forward this request to my lawyer.
       3.  My lawyer should forward the request to the federal prosecutor's office.
       4.  The federal prosecutor should forward the request to the FBI.
       5.  The FBI should forward the request to Target Copy in Tallahassee.
       6.  Target Copy would then gain access to the records from FBI headquarters and calculate copying costs.
       7.  Target Copy would then send my clinic a charge for copying and mailing the requested records.
       8.  I should pay Target Copy in advance for the cost of the records.
       9.  Target Copy would copy the records and send them to the FBI.
     10.  The FBI should notify the federal prosecutor that the records had been copied.
     11.  The federal prosecutor should approve sending the records to my lawyer.
     12.  My lawyer would then receive the records and call my office staff to pick them up.
     13.  Someone from my office should drive to the lawyer's office to get the records.
     14.  My office should call the patient to notify him that his records are ready for pick-up.
     15.  I should charge the patient for the copying and mailing costs, then hand over the records.
     If I should need the records for patient care, as was the case for most patients, I would have to follow the same procedure, paying for the documents myself.  I could never expect to get records for a patient in an emergency situation.  The process was too lengthy for that.
     But if, according to Section 456.057 of the Florida Statutes, I was the rightful owner of the medical records, and if I had created them, handwriting each note and signing off on every page, why should I be required to pay for copying and mailing them?  
     My lawyers didn't know.  They agreed that the process was cumbersome.  They researched the statute and looked for official interpretations that would apply to my case.  They didn't know if I would be liable for health problems resulting from the loss of medical records.  
     I appealed to the Alachua County Court for immediate return of my patients' records, or at least reasonable facsimiles of them.  My appeal was denied, despite my lawyer's presentation of two cases in which patients almost died as a direct result of our not having access to information contained in the charts.  (In one case a schizophrenic patient who was experiencing a mental setback because of a widespread infection in her kidneys was administered IV antibiotics at our office, then given a sulfa-containing antibiotic prescription.  The chart was labeled "sulfa-allergic" but we didn't have the chart, and neither the patient nor the pharmacy were aware of the allergy.  When she suffered a sudden reaction to sulfa and was brought back by her neighbors we were able to route her quickly to life-saving treatment.  In another case a patient's chart had an old EKG that would have alerted us to a finding on the new EKG, a bundle branch block, signifying onset of a serious problem, and the need for immediate cardiac catheterization.  Without the information in his chart, treatment was delayed, resulting in heart damage.) 
     Why was my appeal to the court denied?  What was the purpose of refusing my clinic copies of all the patients' medical records?  Why make patients suffer?
     Every week patients still complain about their records being withheld from them.  Many have called the FBI office, and a few of the loudest have finally received copies of their records.  But most are turned away and told it is my fault their records are in the custody of the FBI, because I won't follow the procedure for recovering them.
     In December 2011 I asked two of my employees to drive to Tallahassee and, having been given the court's permission, copy records for thirty patients.  We were required to bring our own copying equipment, which I purchased--but at the last minute we were told it wouldn't be allowed after all because the fire marshall forbade it.  So we had to use the copy machine on site.  
     These two employees, notable for uncommon geniality and good manners, were supervised every moment of those two days of copying, as required by the FBI.  When they were finished the federal prosecutor told them they could not return.  "Never again!" he said, startling the two women, and citing the inconvenience this activity had caused the FBI.  The inconvenience to my clinic did not seem to be a problem for him at all.
     So the question, "Whose charts are they?" remains unanswered in cases such as mine.  The statutes aren't clear.  Technically they are my property.  Having been "seized" they are now the federal government's.  Right?  Or are they my responsibility if a patient should have a problem resulting from not having the vital information they contain, and theirs when it's too inconvenient to copy them for the clinic?  
     And where do the patients fit in, the ones on the sidelines of this drama, the ones who are asking for their records, the ones who didn't ask for the government's "protection," the ones whose lives may be at stake?       


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