(Refer to your PICA policy regarding incident and claim reporting. Failure to report as required in your policy puts you at risk for being denied insurance coverage should that claim or incident result in a lawsuit. A patient’s request for a waiver of an outstanding balance falls within the definition of a claim. Should you receive a request from a patient for a bill write-off or if you are considering writing-off a patient’s bill, you are encouraged to contact PICA’s Claims Department for guidance. You will be advised if any additional action needs to be taken and if additional information and/or documents will be needed. See the section on “What Should I Report To PICA?” in the Claim/Incident Reporting section of the FAQs.)

In instances of clear or questionable medical error or in instances where the patient is extremely dissatisfied with the care that was rendered, the act of writing off the patient’s bill may be seen as an act of goodwill and may avoid a lawsuit. However, there are no guarantees. To reduce the appearance of admitting liability following an adverse event or unexpected outcome, communicate with the patient and document that the bill is being written off as a gesture of goodwill.

In instances where the patient is unhappy over collection attempts of a bill and is demanding a write-off, you must decide whether or not you want to continue to pursue collections. Your decision may be based upon the amount of the bill and how much “extra effort” you are willing to undergo and how you feel the patient will react to your decision, etc. If you feel the care and treatment you provided and the charges for the care rendered were appropriate, you have
several options, including:

• Denying the patient’s request to write off the bill, and continue pursuing collections.
• Discontinuing pursuing collection attempts, but keeping the balance due on the records.
• Agreeing to write off the bill.
  
  

If you deny the request, send the patient a letter stating you have reviewed the care and treatment rendered and the charges, found them to be in order and are respectfully denying his/her request to write off the bill. If you decide to write off the bill, send the patient a letter stating you are writing the bill off as a goodwill gesture. You can find a Bill Write Off Denial Letter as well as Bill Write Off Letter on PICA's website.

You should be aware of federal anti-fraud, abuse and anti-kickback laws and consult your personal counsel regarding the application of these laws. Write-offs for risk management purposes should be considered on an individual basis and not offered routinely. If you decide to write off a patient’s bill, it is generally best to write off the entire bill, not just the co-payment or deductible. For Medicare, if the claim has already been billed, the provider may not write off a bill without triggering reporting obligations. If the claim has not been billed, the provider may forgive a bill and not bill Medicare without triggering reporting obligations.

Medicare rules state that routine write-offs of co-pays and deductibles constitute billing fraud and abuse. Private insurers often have similar rules. Thus, practitioners should carefully avoid routine write-offs. If, however, the patient has a legitimate financial hardship, Medicare (and most private insurances) will allow a write-off to occur. To protect themselves, practitioners should get documentation from the patient explaining the financial hardship in as much detail as possible. At a minimum, the patient should be asked to send a letter. Also viewing tax returns, bankruptcy and foreclosure papers could also be helpful in determining hardship.

Each office practice should have a written financial policy regarding billing and collection procedures, and patients should be informed of the office’s billing practices prior to the initiation of treatment. For example:

• What insurance plans do you accept?
• What is the patient’s responsibility regarding co-pays, out of pocket expenses, etc.?
• Do you take credit cards?
• When is payment expected?

Hold communications with patients regarding billing matters in a private location. Make sure the person(s) handling billing issues in your office is courteous and has the ability to help patients understand their bills.

Try to determine the reason for non-payment. Is the patient unhappy with the treatment provided? If so, see “Should I write off a patient’s bill?” above. Is the patient having financial difficulties? If so, try to work out a payment schedule. Prior to turning over a patient to a collection agency, send the patient 30, 60, and 90 day billing notices. Recognize any patient attempts to make payments.

DO NOT allow your staff to turn over a patient to a collection agency until you have had a chance to review the patient’s medical records and weigh the risk of malpractice litigation against the need to collect. PICA’s Risk Management Department may be consulted for guidance.

If you choose to utilize a collection agency, make sure the staff is courteous, tactful and professional since the collection agency could be viewed by the patient as a part of your office. You should approve any forms and/or letters used by the agency, and you should give written approval before the collections agency files a lawsuit against a current or former patient. Collection procedures should treat all patients consistently. Collection efforts should NOT be recorded in the patient’s medical record.

You need to continue to treat the patient until such time the physician-patient relationship has ended in order to avoid or defend allegations of abandonment. Should you decide to terminate the relationship with the patient for non-payment of bills, you should undergo a formal termination process as outlined in the “Physician-Patient Relationship” section.

According to your policy, all claims must be reported to PICA by written notice as soon as practical. If you fail to do so, you could void your professional liability insurance coverage. A claim includes a demand for money, services or a waiver of an outstanding balance. Examples of claims are:

• Notification or service of a summons and complaint (also known as a lawsuit).
• A written or verbal request from a patient or his attorney for waiver of an outstanding balance.
• A written or verbal request from a patient or his attorney seeking reimbursement of payments made.
• A written or verbal request from a patient or his attorney for payment of money.
• A written or verbal request from a patient or his attorney that you pay for medical expenses incurred subsequent to your care.
• A written or verbal request from a patient or his attorney that you provide free medical services in the future.
• A Notice of Intent to sue or letter specifically stating a claim is being made written by the patient or the patient’s attorney.

The PICA Claims Department should also be notified of any event or incident which results in or is likely to result in a claim for damages. An incident may include:

• A threat of a lawsuit by a patient or family member.
• A request for records by a patient or a patient’s authorized representative (e.g., an attorney), if the policyholder believes the request is related to the quality of care issues or a potential professional liability claim.
• Verbal or written allegations of misconduct such as sexual harassment, discrimination, etc.
• Verbal or written allegations of invasion of privacy/breach of confidentiality.
• Unexpected outcomes or deaths.
• Patient injury as a result of care, especially catastrophic injury, serious burns or any injury resulting in partial or permanent disability.
• Errors in the policyholder’s judgment or treatment.
• Injuries related to equipment or supplies.
• Any serious adverse event for which opinions or advice regarding liability exposure and management are needed.
• Governmental or Board of Podiatry investigations.
• Data breaches, lost or stolen laptops, network related issues.

If in doubt, contact the PICA Claims Department at (888) 444-7422 for guidance. Once notified, a PICA Claims Department representative will advise you if additional action needs to be taken and if additional information and/or documents will be needed.

For information regarding communication with patients who are unhappy with their care or who have experienced an unexpected outcome or undesirable result, see “What do I tell a patient that has suffered an unexpected outcome?” in the Communication section.

According to your professional liability insurance policy, you must, as soon as practical, give written notice to PICA of any claim made against you and, in the event of a lawsuit, you must immediately forward to PICA every demand, notice, summons or other process received. If you try to settle a claim without involving PICA, your actions could void your professional liability insurance coverage. Therefore, consult with PICA before attempting any settlement on your own.

PICA does not encourage the use of such forms. Mandatory arbitration contracts mean that in the event of a malpractice claim the patient and the physician agree to a hearing where a neutral third party will listen to both sides and give a binding opinion or judgment. While this may at first seem like a good idea, there are many claims of medical malpractice that are without merit. If defensible claims are taken to arbitration, the ability to defend the case is limited. Also, the use of these forms may breach your insurance contract with PICA.

PICA encourages policyholders to notify the claims department of any incident, claim or lawsuit as soon as practical. A claims specialist will evaluate the situation, provide guidance as necessary and appoint a defense attorney if needed and where permitted.

Patients may suffer unexpected outcomes, such as an adverse reaction to a medication, a surgical complication, a fall in the exam room, delayed healing, a misdiagnosis, etc., that may or may not be the result of malpractice. Regardless, physicians are at risk for being named in a lawsuit if steps are not taken to mitigate the risk. Such steps include clear and honest communication with the patient and/or the patient’s family regarding the facts surrounding the unexpected outcome and showing compassion and concern for the patient.

A primary factor in a patient’s decision to pursue a malpractice case often is lack of communication from the physician regarding an unexpected outcome or undesirable result. Patients want answers to their questions. They want honest information about what happened, why it happened, how consequences will be mitigated and, in the case of a medical error, what is being done to prevent reoccurrence.

A little compassion goes a long way in reducing the likelihood that a patient will sue. In many instances, prompt acknowledgement of the unexpected outcome or the patient’s dissatisfaction and an empathetic statement such as, “I’m sorry this happened to you” will be all a patient needs to hear.

But, isn’t saying “I’m sorry” an admission of liability? Not necessarily. An admission of liability occurs when a statement about the acceptance of culpability or negligence is made, for example, “It is my fault that this happened to you.”

Empathetic statements should not be about admitting fault or liability, but rather about connecting with the patient and expressing regret for the patient’s discomfort and/or predicament. Words that admit to negligence or malpractice should be avoided, unless it is a known fact that a medical error occurred, such as wrong-site surgery. Instead, the patient should be provided with an objective, factual description of the event (without accepting or placing blame), a sincere acknowledgment of regret for the unfortunate nature of the event and a plan for continued care and treatment.

You are encouraged to become familiar with your state’s law regarding apologies or benevolent gestures as the provisions vary from state to state. It is also important to become familiar with the disclosure policies and procedures at all hospitals where you have privileges.

While there are no guarantees, honestly acknowledging and addressing an unanticipated outcome and offering benevolent statements and gestures can help minimize patient anger and open lines of communication. This, in turn, may prevent the filing of a lawsuit.

You may consult with PICA’s Risk Management Department or Claims Department for guidance prior to offering benevolent statements or gestures.

 

Avoid collegial criticism. Many patients make the decision to sue a doctor based on the comments of another doctor, usually a subsequent treating doctor. When patients ask about the care they previously received, or when you question the treatment that was rendered to a patient, consider that many times you only have the patient’s side of the story and partial, if any, prior medical records. Therefore, you can only speculate on the other doctor’s rationale for treatment or the circumstances surrounding the care and treatment of the patient.

It is best to encourage the patient who has a question regarding another doctor to talk with that doctor directly. If you have questions regarding the care provided by another practitioner, call the doctor to discuss the care and clarify the issues, if possible, or obtain copies of all pertinent medical records.

When talking to a patient who is questioning care by another doctor, or when you question the care by another doctor, it is best to document the facts and avoid commenting on the other doctor’s care. Facts include physical examination findings, the patient’s current condition/diagnosis, the plan for continued care, etc.

Criticizing another doctor’s care can also open you up to increased liability. Criticizing another doctor’s judgment may imply that you can do a better job. If the outcome of your treatment is less than optimal, the patient may sue you as well as the prior doctor! Likewise, if the patient sues the previous treater, that doctor may decide to bring you into the case and attempt to blame you for the ultimate outcome.

Title III of the Americans with Disabilities Act (ADA) requires that places of public accommodation, including physician’s offices, eliminate any kind of discrimination against individuals with a disability. Individuals with a disability include those with hearing impairments.

The Department of Justice (DOJ) promulgated regulations to implement Title III of the ADA. These regulations state, “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or would result in an undue burden, i.e. significant difficulty or expense.” (28 CFR 36.303.) The term, “auxiliary aids” is defined to include qualified interpreters, note takers, computer-aided transcription services and written materials among others. The cost of providing auxiliary aids cannot be passed along to the patient.

The DOJ’s flexibility regarding nondiscrimination requirements means that the precise requirements are not clear, especially when it comes to what is meant by an “undue burden.” In determining whether or not a particular aid or service would result in an undue burden, you should take into consideration the nature and cost of the aid or service relative to the practice’s size, overall financial resources and overall expenses.

However, the single factor of the cost of an interpreter exceeding the cost of an office visit generally has not been found by the courts to be an undue burden.

The ADA does not mandate the use of interpreters in every instance. The doctor can choose an alternative to interpreters as long as the result is effective communication. The doctor and patient should work together to mutually agree upon the type of auxiliary aid to be employed to achieve effective communication. However, there are some instances when the use of a qualified interpreter is warranted, such as:

• Obtaining medical history.
• Explaining procedures or treatment options.
• Obtaining informed consent.
• Performing treatment or surgery if the patient is conscious.
• Postoperative patient monitoring.
• Explaining medications and side effects.
• Patient education and instructions.

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives federal financial assistance (such as Medicare or Medicaid). The act requires that recipients, including healthcare providers, take reasonable steps to ensure meaningful access to their services, including access by people with limited English proficiency.

The Office of Civil Rights (OCR) defines limited English proficient (LEP) individuals as “individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.”

In order to facilitate federal financial assistance recipients in complying with the law, the OCR published a policy guidance document, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” on August 4, 2003.

According to the OCR document, “Questions and Answers Regarding the Department of Health and Human Services Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” small practitioners and providers will have considerable flexibility in determining how to fulfill their obligations to “take reasonable steps to ensure meaningful access” for persons with LEP. This document states that the OCR will assess compliance on a case-by-case basis and will take into account the following factors:

1. The number or proportion of LEP persons eligible to be served or likely to be encountered.
2. The frequency with which LEP individuals come in contact with the service.
3. The nature and importance of the service provided by the recipient.
4. The resources available to the recipient and costs.

The document goes on to state that smaller recipients with smaller budgets will not be expected to provide the same level of language services as larger recipients with larger budgets.

If, upon application of the four factors mentioned above, the provider determines he/she is required to provide an interpreter, the provider should make the LEP person aware that he/she has the option of having the recipient provide an interpreter for him/her without charge, or of using his/her own interpreter. The LEP person may choose to have a family member or friend interpret. However, providers may not require a LEP person to use a family member or friend as an interpreter. It is important for the doctor to consider special circumstances that may affect whether a family member or friend should serve as an interpreter, such as emergency situations and concerns over competency, confidentiality, privacy or conflict of interest (such as cases of abuse).

A major concern of social media is the constraints placed on healthcare providers by the Health Insurance Portability and Accountability Act (HIPAA). The security of patient information must always be considered in social media interactions to protect the privacy and confidentiality of protected health information. Social media networks are generally not HIPAA compliant. Therefore, individually identifiable information about a patient should not be posted on a social network site. Even if no name is explicitly stated, any information which might identify the patient (i.e., a description of a unique physical characteristic) should be avoided. Additionally, patients should not be contacted via social media regarding anything that could be considered confidential.

Office staff should be made aware of the potential for violation of patient privacy. To protect against unwitting or intentional breaches of privacy, you should institute written communication policies that clearly forbid online disclosure and discussion of patient health information. Require staff to sign confidentiality agreements and acknowledge annually that they have read and understand the policies and agreements.

Appropriate boundaries of the patient-physician relationship should be maintained when interacting with patients online. A professional demeanor should always be maintained. Maintain separate personal and professional identities when using social media. You can create a separate account for your professional practice and allow patients to “like” or “follow” you. You can then provide your patients with information about your practice, educational information, etc.

To aid in maintaining appropriate boundaries with patients, do not become “friends” with your patients. If you receive a “friend” request from a current or former patient, politely refuse and explain to the patient that it would be inappropriate.

Use privacy settings to safeguard personal information and content to the extent possible. However, realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently and could be discoverable. Refrain from unprofessional posting or comments which contain profanity, sexually explicit material or discriminatory remarks. Be aware that your actions online and the content you post can negatively affect your reputation among patients and colleagues. Additionally, in the event you are named in a lawsuit, inappropriate or questionable social media practices could cause your character and credibility to be questioned.

It is also important to avoid the appearance of providing medical advice to someone with whom you do not have an established relationship. Doing so could open you to medical malpractice liability and the risk of practicing podiatry in jurisdictions where you are not licensed. Disclaimers should be used to state clearly that you are not giving podiatric advice and that readers should consult their own practitioners for treatment options or call your office for an appointment.

The U.S. Department of Health and Human Services published a guide, which can be accessed here. This guide explains when a healthcare provider is allowed to share a patient’s health information with the patient’s family members, friends or others identified by the patient as involved in the patient’s care under HIPAA.

No. The best practice is to leave a call back number with the patient. It is acceptable to leave messages on a patient’s voicemail. However, care should be taken to limit the amount of information disclosed in order to reasonably safeguard the patient’s privacy. Additionally, you cannot be sure the patient receives the test result if you leave a message. It is best to deliver test results directly to the patient. Be sure the conversation with the patient is documented in the patient’s medical record including the date and time of the call, the exact information given and who relayed the information.

Under the initial HIPAA privacy rule, the patient had the right to request restrictions to the use or disclosure of their private health information (PHI), but the provider did not have to agree to the restrictions. However, the Health Information Technology for Economic and Clinical Health Act (HITECH) increased the patient’s right to request restrictions on disclosure of the patient’s PHI. Now, providers must agree to patients’ requests to restrict disclosure of PHI to an insurance company if the patient paid cash for the service.

Patients have the right to request that their protected health information be amended by their healthcare provider to correct incomplete or incorrect information upon submission of a written request. (See HIPAA Privacy Rule – Standard 164.526). However, the office may deny a patient’s request for amendment if the office determines that the protected information subject to the request:

1. Was not created by the office, unless the individual provides a reasonable basis to believe that the originator of the protected health information is no longer available to act on the requested information.
2. Would not be available to the patient for inspection (see HIPAA Privacy Rule 164.524 for exceptions to a patient’s right to access protected health information).
3. Is accurate and complete.

Should a provider deny a patient’s request to amend his/her protected health information, the provider must provide the patient with a written explanation of the denial. The patient will have the right to file a statement of disagreement or to request that the office include the individual’s request for amendment and the denial with any future disclosures of the protected health information subject to the request.

A Request to Amend Protected Health Information form can be found on PICA’s website.

The HIPAA Privacy Rule (45 CFR 164.506) allows healthcare providers to share protected health information for treatment purposes without the patient’s authorization. However, if a prior healthcare provider is no longer involved in the care and treatment, you should not disclose a patient’s information without the express written consent of the patient.

The HIPAA Security Rule requires practices to notify a patient in the event that unsecured protected health information is disclosed to an unauthorized person. Unsecured protected health information means health information that is not protected by technology that renders it unusable or unreadable to unauthorized persons.

There are several steps that you must take when a breach has occurred. Contact the PICA Claims Department at (888) 444-7422 and our claims specialists will assist you on how to notify your patients of the breach.

Good documentation in the patient’s medical record can be a primary defense against allegations of malpractice. A well-documented medical record may actually prevent a lawsuit from being filed. On the other hand, poor documentation or alterations in the medical record can render an otherwise defensible case indefensible. Medical record documentation should accurately reflect the care and treatment provided to a patient and that the standard of care was rendered. Good documentation is also crucial in the coordination and communication of patient care with other healthcare providers and to justify billing. Documentation should be legible, accurate, clinically relevant, chronological, objective, clear, complete and specific.

For a comprehensive documentation guide for paper and electronic medical records, go to PICA’s website.

There are valid instances when correction of an erroneous entry, late entries of necessary clinical information, addendums to prior entries or amendments to the medical record need to occur. In these instances, appropriate steps should be taken to clearly document who made the entry, when the entry was made and why the entry was made.

Changes to the medical record should not be made after the record has been copied and released, such as to an attorney. Any changes to a record after a copy has been released results in two versions of the record. In the event of a lawsuit, suspicions of record alteration will be raised. Any hint of record tampering may completely shatter the credibility of the record and of the defendant and may lead to a plaintiff’s verdict, regardless of the medical facts or merit of the case.

Never alter a medical record. If it is determined that medical records have been changed without justification, the credibility of the entire record may be destroyed. Not only will record alteration severely damage the chances of prevailing in a lawsuit, but it may put professional liability coverage for the incident at risk.

Please refer to PICA’s "Documentation Essentials: Using Documentation to Support and Defend Your Good Care" available to policyholders on PICA’s website for detailed information regarding error correction, late entries, addendums and amendments to the medical record.

As soon as possible after discovering an unexpected outcome, document the event in the patient’s medical record. Documentation of unexpected outcomes should be factual. The documentation should not contain subjective comments, blame or speculation about what happened.

For example, documentation regarding a patient who developed a hallux varus following a bunionectomy should include the physical findings, results of X-rays, the diagnosis and plan for future treatment. Documentation should not include your theory of the reason for development of the hallux varus.

After you have communicated the facts to the patient and/or family, document the information discussed; the date, time and place of the discussion; the names of those present; and your plans for subsequent treatment.

For example, “2/5/2015 – 3:00 p.m. Met with patient and his wife in my office and explained to them that the patient developed a hallux varus after his bunionectomy. I provided them with education regarding hallux varus and explained that, as we discussed pre-op, this is a complication of bunionectomy. I discussed treatment options including conservative treatment and surgery and the risks and benefits of each. The patient would like to try conservative treatment prior to considering surgery.”

If there is no employment agreement or other contractual arrangement between the departing podiatric physician and the practice stating otherwise, generally the patient and the patient’s record are the “property” of the practice and the practice is responsible for continued patient care. The departing podiatric physician should not physically remove the patient chart and any other property belonging to the practice at the time of his/her departure.

In general, if there is no employment agreement or other contractual arrangement between the departing podiatric physician and the practice stating otherwise, the departing podiatric physician may give patients notice that he/she is leaving the practice and will be opening up a new practice at another location. However, some states may consider this a violation of your duty as an employee and, therefore, you should consult with legal counsel  before advising patients of your impending departure from the practice. If a patient wants to continue treatment with the departing podiatric physician, the departing podiatric physician may provide the patient with a medical records release form by which the patient may instruct the practice to release a copy of his/her medical records to the departing podiatric physician. The release form should comply with the HIPAA Privacy Rules. The departing podiatric physician’s written notice to the patient should not give details as to the reasons for the podiatric physician’s departure; doing so is unnecessary and could prompt a lawsuit by the practice. Further, the letter should be neutral in tone, simply advising the patient that he/she has the right to either continue treatment with the practice or to have a copy of his/her records sent to the departing podiatric physician. Once the patient makes a choice, both the practice and the departing podiatric physician must honor that choice.

The responsibility for the patient remains with the group practice until such time the patient has made a decision to move his/her treatment to the departing podiatric physician or another doctor. If the patient chooses to stay with the practice, the malpractice liability for acts committed thereafter also remains with the practice; if the patient chooses to go with the departing podiatric physician, that podiatric physician will then be able to continue the care and will assume responsibility for any malpractice liability. In all instances, the departing podiatric physician and the practice should act professionally to transition the patient’s care in order to avoid compromising the patient’s health.

The type of emergency equipment and medications needed in an office of podiatry is dependent upon many factors, including the level of service provided, the skills of the podiatric physician and his/her staff and the distance to the nearest emergency department.

While rare, medical emergencies do happen in the office setting. Patients, visitors or staff could suffer from an unexpected medical emergency. Therefore, all offices should have a plan to deal with this type of situation. The plan could be as simple as having the receptionist dial 9-1-1 and a staff member certified in basic life support perform CPR, if necessary, until EMS personnel arrive.

The more sophisticated the plan and equipment, the more responsibility a podiatric physician has. No office should stock emergency equipment and/or medications that cannot be used safely by office staff. Ideally, all office employees should be trained and maintain certification in basic life support, regardless of their office responsibilities.

If a person expresses they are suicidal, this is an emergency situation and should be treated as such. The office’s medical emergency plan should be implemented. The patient should not be left alone until EMS personnel arrive to assume care and treatment of the patient.

It is important for each practice to establish, and consistently implement, medical record retention policies and procedures.

Medical record retention policies and procedures should include guidelines that specify what information should be kept, the time period for which it should be kept and the storage medium (electronic, paper, X-rays, etc.). Applicable federal health record retention requirements, state laws or regulations pertaining to retention of health information, and accreditation agency retention standards, if applicable, should be followed. It is recommended that a local attorney, familiar with such matters, be consulted when developing medical record retention policies.

Unless longer periods of time are required by state or federal law, records of adult patients should be retained for a minimum of 10 years after the most recent encounter and records of minor patients should be retained to the age of majority plus the state statute of limitations or 10 years after the most recent encounter, whichever is longest.

Yes. Under the HIPAA Privacy Rule, the patient has the right to inspect and receive a copy of their patient record (with some defined exceptions). The doctor may provide the patient with a summary of the records, if the patient agrees.

No. Original medical records, including radiological films, should not be removed from the office premises except as required by court order, valid subpoena* or statute. Copies of records may be released as necessary for treatment, payment and healthcare operations (as defined by HIPAA) or upon receipt of a written authorization of the patient or the patient’s representative.

*A subpoena usually requires the doctor to make arrangements to appear with the records or provide identical copies of the records to attorneys for each side in the matter. Should a subpoena require the doctor to send original medical records to an attorney, the doctor should promptly consult with a PICA Claims Specialist.

No. Federal law (HIPAA) gives patients the right to view or obtain a copy of the information contained in their patient record. Therefore, a copy of a patient’s record must be made available to the patient in a timely manner upon request by the patient.

Federal and state laws address fees that doctors may charge patients and others for copying medical records. HIPAA’s privacy rule addresses fees in section 164.524(c) (4) which allows a provider to charge a reasonable, cost-based fee for copying and postage. It also allows providers to charge for preparing an explanation or summary of the record, if the patient agrees in advance to a summary or explanation and to the fees imposed, if any.

It should be noted that an update clarified the final privacy rule to say that Section 164.524(c)(4) (referenced above) limits only the fees that may be charged to individuals or to their personal representatives. The fee limitations do not apply to any other permissible disclosures, such as requests by attorneys with a valid patient authorization.

State regulations provide the most specific guidance regarding fees for medical record requests other than from patients. Most states have specific laws and regulations that should be used in establishing your copy cost fees.

Should you decide to charge a fee for copy costs, you are strongly encouraged to consult a local attorney familiar with such laws prior to implementing your office copy cost fee schedule. Once your fee schedule has been developed, it should be reviewed and updated on an annual basis.

It depends on what is required by federal and state laws. There are regulations and statutes in place that specify what you can charge for record requests. Please consult a local attorney or research the laws in the state where you practice.

You can refuse, but most states will provide the attorney with subpoena power which allows the attorney to command your performance at a date/time/location of their choice.

You still have to retain the original X-rays and provide the requestor (with the patient’s written authorization, if not the patient) a copy. If you do not have access to a copier at the local hospital or another physician’s office, you can utilize an X-ray copy service to make the copies. Be sure to obtain a HIPAA Business Associate Agreement with the copy service provider. If the request is made by an attorney, you could ask the attorney to send over their copy service to make the copies.

The medical record (including radiological films) of a patient is the property of the doctor or the practice and is maintained for the benefit of the patient, physician and office. Patients have the right to request a copy (never give the original to a patient) of records or the right to request that a copy be forwarded to another party.

The HIPAA security rule requires that patient medical records are readily available and that you backup your electronic medical records on a regular basis. When a computer crashes and data is lost, you should have a backup of your data available to restore your patient information. HIPAA regulations require that you test your backups on a regular basis to insure that you can restore data from your backup files. In instances of loss of patient data, contact PICA’s Risk Management Department at (800) 251-5727 for assistance.

If the information is truly not retrievable, you should start a new patient record, indicating that the original record was lost or destroyed and the date of the occurrence. The patient should be treated as a new patient at the next visit (at no added cost to the patient or third party payor). Have the patient complete all forms that you would have a new patient complete such as the patient history form, current medication list, etc. and perform and document an initial history and physical exam and any other tests or workup that is needed. If you can obtain copies of prior lab work, X-rays, operative reports or other medical records from other healthcare providers, be sure to identify them as a copy.

Yes. If professional treatment is provided to an individual, even if that individual is a staff member or a friend, then a physician-patient relationship has been established and a complete medical record should be maintained. There have been numerous incidents of lawsuits filed by staff members or friends of providers following “informal” treatment resulting in a bad outcome. Without medical records, it is almost impossible to defend a claim. In addition, state laws or rules and regulations require practitioners to keep medical records on each patient.

Generally, both parents have the right to their minor child’s health and/or billing information, unless there is a court order revoking the parental rights of one or both of the parents.

Generally, both parents have the right to consent for treatment of their minor child regardless of who has custody of the child, unless there is a court order revoking that right from one or both parents.

State laws vary widely and the laws frequently change. Some states may permit a minor to consent to treatment based upon the minor’s legal status or the type of healthcare to be delivered. For example, state law may recognize a minor as emancipated and thus, able to consent for his/her own treatment if he/she is married or in the military. Or, the state may legally grant an order of emancipation to a minor.

Some states may also permit an unemancipated minor to consent for his/her own treatment for certain medical services such as contraceptive, prenatal, STD/HIV or mental health services. Additionally, some states allow “mature minors” to consent for general healthcare in certain situations.

Before accepting the minor’s word on his or her emancipation, ask to see the order or other appropriate documentation.

Yes, if you have valid consent from the parent. Ideally, you would have the parent or legal guardian provide you with a written authorization specifically giving his/her consent for you to see the minor and for a specifically named adult to bring the minor to the office or for the minor to come in alone. The authorization could be for one visit only or for a period of time. However, sometimes the minor just arrives with someone other than the parent or legal guardian with no written authorization from the parent. In such a case, you could call the parent or legal guardian and obtain telephonic permission for the minor to be seen and for pertinent medical information to be relayed to the person who brought the minor into the office. The phone call should be documented in the patient’s record.

Ideally, for visits that require more than general examination or follow-up, such as an initial visit, the need for a procedure or any treatment requiring informed consent, or if the minor has a condition which involves communication and/or education of the parent, it is highly recommended that you schedule/reschedule the appointment at a time the parent can be present.

Occasionally, a doctor will receive a call from a pharmacist who has detected a fraudulent prescription order from a person who has forged a prescription on the doctor’s prescription pad or who has fraudulently called in a prescription.

If the offender is an employee, you should take appropriate disciplinary measures which will likely involve termination. If the offender is a patient, you should discuss the incident with the patient and make a determination regarding whether or not you will continue your relationship with the patient. If you choose to discontinue your relationship, you will need to follow formal termination procedures. (See the section on Termination of the Physician-Patient Relationship.)

Prescription fraud is a felony and should be reported to local police. Usually, the pharmacist who discovered the fraudulent prescription reports the incident, so check with the pharmacist before making a report to police.

The owners of the office practice have a duty to provide adequate and reasonable security for the safety of their staff, patients and others. Violence of any type (physical assault, verbal or written threats or harassment) should not be tolerated. You and your office staff should be trained to recognize patient risk factors, including a history of violent behavior, associated medical and psychiatric diagnoses, behavioral cues and substance abuse. Employees who frequently deal with people on the telephone and those who handle angry or dissatisfied patients should receive specific training in managing angry or difficult patients. Skills in de-escalating the angry caller or complainant can go a long way in preventing a future act of violence.

For patients or persons accompanying patients who are disruptive, but are not really violent, try to determine the reason for their disruptive behavior. Maybe the patient is frustrated with long wait times or is confused about the care and treatment being rendered or is upset over a billing matter. You may be able to eliminate the disruptive behavior by addressing the patient’s concerns. If the patient or other person continues with the disruptive behavior, you should discuss with him/her that his/her behavior is not acceptable and that if the behavior continues, you will have no choice but to terminate the relationship if the abuser is a patient, or ask the person not to return if the abuser is someone other than a patient.

While normally you should follow a formal termination process (see the section on “Termination of the Physician-Patient Relationship”) in which you continue to provide care to the patient being terminated for a period of time until he/she can obtain a new doctor, you may be justified in immediately terminating a patient if the patient is violent or presents a threat of violence to you or your staff. The patient’s behavior should be documented objectively in the patient’s medical record.

Any serious threats of violence should be reported to law enforcement officials.

Yes. Employers can be vicariously liable for the actions of their employees. Under the cause of action respondeat superior (“let the master answer”), the master or employer is liable for the negligence of its servants or employees that occurs in the course of employment. Thus, an employer can be held vicariously liable for the negligent acts of nurses, employed doctors, and other employees.

Employers may also be at risk for allegations of negligent credentialing if they fail to properly evaluate and reevaluate provider credentials and performance. Office practices must ensure not only the clinical competency of their doctors, but also that of midlevel providers and any licensed and unlicensed personnel with patient care responsibilities.

Employers may also be held liable for failure to supervise or direct the activities of midlevel providers and other licensed and unlicensed staff. For licensed and allied health staff, any gaps should be identified between actual job responsibilities and the scope of work permitted under state licensing laws (e.g., nursing and medical practice acts, doctor-assistant licensing acts, nurse practitioner licensing acts).

Current patients (any patient seen/treated by you on one or more occasions in the past 12 to 24 months) should receive written notification of practice closure approximately 90 days before the last date of active practice. The letter should be sent via certified mail, “return receipt requested,” and regular U.S. mail. The certified receipt should be attached to the file copy of the letter and placed in the patient’s patient record.

The letter should include the following:

• The date the practice will close.
• The importance of seeking continued care.
• Information about where the patient’s medical records will be located (for example, another doctor’s office).
• Notification that a copy of the patient’s records will be sent to another doctor of the patient’s choice upon receipt of the patient’s written authorization.
• A medical record release authorization form.
• A statement of how long the patient’s records will be retained.
• A permanent mailing address (or P.O. Box) for all future record requests, if the records will not be maintained at the current location.

Patients receiving ongoing care and treatment should also receive verbal notification with a discussion of their plan of treatment and coordination of follow-up care, all of which should be documented. Other patient notification efforts may include:

• Placing an ad in the local newspaper notifying the public of the office closure.
• Placing signs in the office notifying patients of the pending office closure.
• Placing a message on the office phone system.

If you do not want patients or others taking pictures or filming in your office, you may develop an office policy stating that the use of cameras or electronic devices are prohibited in the office. You could post a sign notifying patients and others of your policy in waiting and treatment rooms.

If a patient or their family member, etc. begins to take pictures or videos, politely remind him/her of your office policy. If they insist on continuing, you may opt to discontinue treatment (unless doing so would put the patient in jeopardy) and formally terminating your relationship with the patient.

The federal law Emergency Medical Treatment and Labor Act (EMTALA) requires physicians who provide on-call services to hospital emergency departments to provide stabilizing treatment to a patient who is deemed to have an emergency medical condition.

According to the Centers for Medicare and Medicaid Services (CMS) Revised EMTALA Interpretive Guidelines:

“For those individuals whose emergency medical conditions (EMC) have been resolved, the physician or qualified
medical personnel (QMP) has several options:

• Discharge home with follow-up instructions. An individual is considered stable and ready for discharge when, within reasonable clinical confidence, it is determined that the individual has reached the point where his/her continued care, including diagnostic work-up and/or treatment, could be reasonably performed as an outpatient or later as an inpatient, provided the individual is given a plan for appropriate follow-up care as part of the discharge instructions. The EMC that caused the individual to present to the dedicated ED must be resolved, but the underlying medical condition may persist. Hospitals are expected within reason to assist/provide discharged individuals the necessary information to secure the necessary follow-up care to prevent relapse or worsening of the medical condition upon release from the hospital; or
• Inpatient admission for continued care.”

EMTALA does not fully address the issue of follow-up care for patients who have been treated, stabilized and discharged from an emergency department. From a risk management perspective, if a patient needs follow-up care after discharge from the emergency department, you should provide the patient with appropriate discharge instructions including what follow-up is necessary. Follow-up can be with another podiatric physician. However, if you instruct the patient to follow-up with you, then you would have a continued relationship with the patient and would have to see the patient until the relationship has been terminated, even if the patient does not have insurance or the ability to pay.

A physician-patient relationship usually begins when a physician begins to evaluate the patient’s medical condition. Therefore, in general, the physician’s right to refuse to accept the patient must be exercised before the physician evaluates the patient. If the physician evaluates the patient and determines that he/she is in need of immediate care, then the physician is responsible for ensuring that the necessary care is provided. If the patient is not in need of immediate care, the physician may terminate the relationship. (See the section on “Terminating the Physician-Patient Relationship”.)

Physicians do not have unlimited discretion to refuse to accept a person as a new patient. Federal laws prohibit physicians from refusing care for discriminatory reasons such as ethnicity, race or religion. Hospital by-laws, managed care organizations, other contractual arrangements and statutory requirements may limit a physician’s right to refuse to treat patients.

While you may have the option to choose to refuse to accept patients based upon their inability to pay for treatment or services, you should be aware that a decision not to accept a patient for financial reasons may be difficult to explain to a jury if the person suffered harm by a subsequent delay in receiving medical care.

Patients have the right to refuse treatment, including hospitalization. Even if a patient refuses your treatment recommendations, you still have a physician-patient relationship with that patient until the relationship has been terminated.

If a patient refuses your recommended treatment, it is important that you have an “informed refusal” discussion with the patient. The patient’s refusal may be due to a lack of understanding of the recommended treatment or the patient’s inability to comply with the plan of treatment for one reason or another. Therefore, patient education is necessary to make certain that the patient understands the recommended treatment, the benefits and risks of the treatment and any risks connected with the failure to undergo the treatment. Additionally, discuss with the patient any alternative treatment possibilities and the risks and benefits of each. All discussions and educational efforts should be documented in the patient’s medical record along with the fact that the patient was made aware and understands the risks of non-compliance with the recommended plan of treatment.

If you decide that you want to terminate your relationship with the patient for non-compliance (or for any other reason), you need to take steps to avoid civil liability or disciplinary action for patient abandonment by formally terminating your relationship.

If you agree to see a patient and provide treatment to that patient, then you have developed a physician-patient relationship. Therefore, you have a responsibility to continue providing necessary follow-up care to the patient until the relationship has been terminated. Try to work out a mutually agreeable payment schedule with the patient. If you feel it necessary to terminate your relationship with the patient for non-payment, then you should follow steps to formally terminate the relationship to minimize liability exposure.

As stated above in the “Billing Issues” section, you should have a written policy regarding billing and collection procedures, and patients should be informed of the office’s billing practices prior to the initiation of non-emergent treatment.

Patients should be informed prior to any non-emergent procedure of their financial obligations and options for payment (for example, paying over time). The cost of a procedure will likely be a factor in the patient’s decision to have or not have non-emergent surgery and should be a part of the informed consent discussion. Additionally, any alternatives for treatment and risks and benefits of the alternatives should be discussed with the patient. If the patient consents to surgery and agrees to the payment terms, then you should proceed with the surgery and bill according to your payment terms. If the patient does not consent to surgery, then his/her refusal should be documented along with fact the patient understands the risks of refusing the surgery.

You cannot discriminate against a patient who has HIV. An HIV positive patient, as with any patient, should be evaluated and treated appropriately. For you and your staff’s safety, all patients should be treated as if they were HIV positive, which means utilizing universal safety precautions.

If surgery is a treatment option for any patient, the risks and benefits of the surgery should be evaluated. If the patient’s medical condition places the patient at a higher risk for surgery, the risks of surgery may outweigh the benefits and you may feel the patient is not a surgical candidate. If the patient is a not a surgical candidate, document your rationale for making that determination. It is also important to discuss with the patient why he/she is not a surgical candidate and discuss other treatment options. As with any patient, if the HIV positive patient insists on having surgery against your better judgment, you may refuse and/or refer him/her to another doctor.

If you feel the patient is a not a surgical candidate or that surgery is not indicated, document your rationale for making that determination, discuss with the patient why he/she is not a surgical candidate, and discuss other treatment options. If a patient insists on having surgery against your better judgment, you may refuse and/or refer him/her to another doctor. While you do have a duty to provide the standard of care to your patients, you are not bound to provide treatment against your better judgment.

A long term care facility (LTC) is primarily responsible for the care provided to its residents by virtue of the fact that it controls who is allowed to enter the facility. If a LTC terminates the ability of a podiatric physician to continue providing care to residents, the consequences of that decision falls on the LTC, not the podiatric physician. You should do all that is necessary and prudent to transition and/or coordinate the care of the residents to the new care provider.

If any of the appointments were arranged directly between the patient/guardian and the podiatric physician, you should formally terminate your relationship with LTC patients the same way you would with a private practice patient.

If the LTC was arranging all the appointments for the resident, the LTC is responsible for informing their residents of any changes in their treatment. We suggest you give at least a 30-day written notice to the LTC stating your termination date and provide your office number and address in case any patients would like to continue treatment at your office. It becomes the LTC’s task to find another podiatric physician to continue on-site podiatric care for their residents.

You should provide the requisite standard of care for any patient. If in your judgment the patient should not require narcotics, then you do not have to write a prescription for him/her. Document the patient’s complaints, your objective physical exam findings, diagnostic test results, etc. in the patient’s medical record. If there is no objective evidence that the patient needs narcotics, or the patient is complaining of an unusual amount or duration of pain for which you cannot account, consider referring the patient to a specialist (e.g., pain management) for further evaluation and treatment.

It is important that you do not sign a release without restrictions if you feel the patient should have restrictions. If the patient ends up with a poor outcome as a result of working without restrictions, you would be exposed to liability since you signed a document stating the patient was able to safely return to full duty.

Discuss your rationale for your recommendations for restrictions with the patient, including the benefits and risks of the patient adhering to your recommendations. The patient may still refuse to accept your recommendations, and if so, you should document the patient’s informed refusal. However, you should not provide the patient with any release that is not in accordance with your professional judgment.

The passage of time since the patient’s last visit to the physician is not the sole factor in determining whether the physician-patient relationship has been terminated. The duration of the physician-patient relationship is measured on the individual facts of each case. Factors to be considered include:

• The level of dependency the patient has on the physician-patient relationship. A deep level of dependence can exist if the patient has had a long-term relationship with the doctor or a marginal level of dependence can exist if the patient was only seen one time. Generally, the more dependency a patient has on the doctor, the longer the relationship may be determined to exist, even after termination might otherwise appear to have occurred.
• Explicit termination by the patient or the doctor.
• Implied termination of care by the patient. If the patient begins treatment with another doctor and no longer keeps appointments with you, the patient implies that the relationship has ended.
• Mutual agreement between the patient and the doctor that the relationship has ended. For example, the doctor has nothing further to offer the patient and refers the patient to a specialist or another doctor for continued treatment, or there is no further need for the doctor’s services.

If you suspect a patient is interested in more than a professional relationship, let the patient know that your relationship is professional only and make the boundaries clear (e.g., no phone calls that are not of a medical nature, no gifts, etc.). Take precautions to make sure you are not in an unchaperoned situation with the patient. Avoid even the suggestion of impropriety by always conducting yourself in a professional manner. If the patient continues with inappropriate behavior, you may formally terminate the relationship. (See the section on “Terminating the Physician-Patient Relationship”.)

Situations that are personal and emotional may interfere with medical decision-making and objectivity. This is recognized by professional organizations, academic literature and regulatory bodies which agree that the treatment of family members is professionally unwise and ethically problematical.

The APMA Code of Ethics states “The podiatrist should refrain from providing care for any individual with whom he/she has a relationship of a nature that may cause him/her to provide care with reduced objectivity, interfering with the exercise of sound medical judgment.”

Risks of treating a family member include:

• Personal feelings and fears might compromise a doctor’s professional objectivity and judgment leading him/ her to either over- or under-estimate the seriousness of the patient’s condition.
• Potential informality associated with treating family members may lead to inadequate history-taking, physical and diagnostic work-up and/or record-keeping.
• Personal connections may also complicate the way in which the patient/family members and doctor interact.
• Potentially sensitive, but clinically relevant questions may not be asked or examinations may not be performed.
• Family members may be less likely to disclose personal, but pertinent, facts.

However, there are instances when treating a family member may be necessary in limited circumstances, such as minor illnesses or emergency situations. Some states have regulations prohibiting doctors from prescribing medications to family members.

Termination of your relationship with a patient should always be carefully considered. However, there are many reasons that termination may be necessary. Examples include:

• Continued patient non-adherence.
• Patient demands treatment not considered to be within the standard of care.
• Patient is verbally abusive/threatening to you or your staff.
• Patient is abusing prescription drugs or controlled substances.
• Patient refuses to pay or make arrangements to pay bills.
• Any other reason the physician feels is eroding the physician-patient relationship.

You should not terminate a relationship based on the patient’s race, color, gender, religion, national origin or age.

The following steps can minimize liability exposure arising from termination of the physician-patient relationship:

1. Review the medical record for conditions that might require additional treatment or monitoring.
2. Check the provisions of any contract signed with the patient’s health plan to ensure compliance.
3. If at all possible, discuss the termination with the patient in person.
4. Send a written notice of termination to the patient by certified mail, return receipt requested, and by regular mail simultaneously. Keep a copy of the letter and the receipt in the patient’s medical record. If the patient refuses to sign for the letter, keep the copy of the undelivered receipt and the letter in the medical record.
5. The letter should state:
   • The reason for termination (e.g., “you have consistently failed to follow my advice and recommendations,” “you have not followed through with arrangements to pay the balance due on your account,” “there are important differences in our views of medical care and treatment,” “the present nature of our physician-patient relationship,” or “your continued inappropriate behavior in my office.”)
   • That you will continue to provide care to the patient for a reasonable period of time (usually 30 days) while he/she finds alternate care.
   • If the patient has a condition that requires continued medical treatment or follow-up, include that it is important for him/her to continue with treatment because of his/her current medical condition and that you encourage him/her to select another physician promptly for ongoing care.
   • That a copy of the patient’s medical record will be sent to the new provider at the patient’s request.
6. Avoid referring the patient to another specific physician. Instead, refer the patient to a provider referral source(s) in the community.

A sample "Termination of Physician-Patient Relationship" is available on PICA’s website.

The amount of involvement with the patient in the 30-day period depends upon the situation. The main concern is to prevent or to be able to defend against allegations of patient abandonment. If the patient has a problem requiring continued observation or treatment and would normally be followed during the 30-day period, it would be prudent for you to continue to see the patient during the 30-day period if the patient chooses to return to see you. 

However, if the patient does not have a condition requiring continuing observation or treatment and would not normally require an office visit during the 30-day period, then you can tell the patient you will be available for emergency situations. Regardless, if a patient calls for an appointment in the 30-day period, it would be prudent to make an appointment and perform a proper examination and necessary treatment. However, you do not have to perform any elective treatment or procedures.

Yes, the termination is still effective. Make sure to place the receipts from the certified letter that show that patient refused to sign for letter in the patient’s medical record.

In this situation the patient terminated the physician-patient relationship so you do not need to send a termination letter. However, you should send the patient a letter confirming the patient’s termination of the relationship. The letter should be sent certified mail and standard mail and a copy of the letter along with the certified receipts should be placed in the medical record.

A sample “Letter Confirming Patient’s Termination of Physician-Patient Relationship” can be found on PICA’s website.

First, find out why the patient continues to call. Do they have a legitimate question that needs to be addressed? Is it a billing issue? Do they want a copy of their medical record? Try to resolve the issue if possible.

If the patient continues with harassing behavior, you could send the patient another certified letter confirming the date the relationship was terminated and that you and your staff will not be able to take any more calls. If the patient still continues to call, you can make a formal complaint with the local police department.