Chapter 21 Medical Records
INTRODUCTION
DEFINITIONS
Patient
Provider of Health Care
Health Care Records
Custodian of Medical Records
Confidential Communication
PATIENTS RIGHT TO PRIVACY WITH REGARD TO MEDICAL RECORDS
Patients Bill of Rights
Privilege
Rules Regarding the Medical Records of Mental Health Patients
EXCEPTIONS TO PRIVACY – RELEASE OF MEDICAL RECORDS
Subpoenaed Records
Compliance With the Subpoena
Investigations
GENERAL PROVISIONS
Disciplining Physicians
Recording Determination of Terminal Condition & Declaration
Transfer of Records
Health Care Record Retention
Examination of Health Maintenance Organization
Business Relationships
CERTIFICATE OF CUSTODIAN OF RECORDS
INTRODUCTION
As a general rule, patients medical records must remain confidential. Aside from the obvious need to limit access to potentially embarrassing or damaging information concerning a patients treatment, the physician must be concerned with establishing and maintaining a degree of trust with his patients. Without this trust, a patient will be less likely to divulge intimate details of their illness or injury. The lack of complete details may lead to incorrect or incomplete diagnosis and treatment by the physician, which in turn leads to further distrust and potential malpractice claims.
In Nevada, a physician is under both a legal and moral duty to maintain the integrity, accuracy, and confidentiality of a patients medical records. There are many instances, however, where this legal and moral duty must be compromised. When faced with this apparent contradiction between the patients rights and the rights of other entities, such as the government, the physician must take care to ensure that (s)he complies with the letter of the law, while keeping the patient informed of ongoing proceedings. In some specific situations, a patients consent is not required before his medical records are released; nonetheless, keeping a patient informed may ease the patients frustrations, and minimize the damage done to the patient-physician relationship.
This chapter first reviews the legal definitions of certain terms germane to the discussion of medical records and confidentiality. Next, the chapter briefly discusses the basis for a patients right to privacy with regard to medical records and the manner in which the right may be invoked. Finally, the many Nevada exceptions to the right to confidentiality, and the legal requirements imposed on physicians and health care providers, are examined.
DEFINITIONS
The following definitions may be of use when reviewing the law concerning medical records.
Patient – A patient in the physician-patient relationship is one who consults or is examined or interviewed by a physician for the purpose of diagnosis or treatment. In Cleghorn v. Hess, 109 Nev. 544, 853 P.2d 1260 (1993), a broad interpretation of the term patient was adopted by the court, consistent with the legislatures intent. In this specific case, the term patient extended even to those members of a union who were examined by a psychologist to determine suitability for employment and no other reason. Clearly the definition reaches beyond the traditional view of a sick or injured person being treated by a physician. NRS 49.215.
Provider of Health Care – NRS 629.031 provides the following definition for the term provider of health care:
Provider of health care means a physician licensed pursuant to chapter 630, 630A or 633 of NRS, dentist, licensed nurse, dispensing optician, optometrist, practitioner or respiratory care, registered physical therapist, podiatric physician, licensed psychologist, licensed marriage and family therapist, chiropractor, doctor of Oriental medicine in any form, medical laboratory director or technician, pharmacist or a licensed hospital as the employer of any such person.
For the purposes of NRS 629.051, 629.061 and 629.065, which deal specifically with medical records and their maintenance, the term includes a facility that maintains the health care records of patients. In general, the definition is broad in its scope, and includes more than just a traditional definition of a physician.
Health Care Records – Health care records and medical records are often used interchangeably. The definition of health care records, which appears in several places in the Nevada Revised Statutes, is any written reports, notes, orders, photographs, X-rays or other written record received or produced by a provider of health care, or any person employed by him, which contains information relating to the medical history, examination, diagnosis or treatment of the patient. NRS 41A.008. (Note that NRS 629.021 uses essentially the same language but is broader as it includes electronic data.) Medical records is a more general term that includes bills, ledgers . . . and other accounts which show the cost of medical services, NRS 52.320, as well as any documentation that includes a medical history . . . a summary of the current physical condition . . . and a discharge summary of the patient. NRS 433B.200(2).
Custodian of Medical Records – A custodian of medical records is that person who has care, custody and control of medical records, for such persons or institutions that prepare medical records. Persons who could be the custodian of medical records include a chiropractor, physician, registered physical therapist or licensed nurse, as well as any employee or agent of the same. NRS 52.320. The definition also includes facilities for convalescent care, medical laboratories and hospitals.
Confidential Communication – A communication, including communications in the form of medical records, are confidential if they are not intended to be shared with third persons, except under very limited circumstances. Persons who may hear or view a confidential communication without the confidential nature of the communication being compromised include:
- a) Those present to further the interest of the patient in the consultation, examination or interview;
- b) Persons reasonable necessary for the transmission of the communication;
- c) Persons who are participating in the diagnosis and treatment under the direction of the physician, including members of the patients family.
NRS 49.215.
PATIENTS RIGHT TO PRIVACY WITH REGARD TO MEDICAL RECORDS
Patients have certain rights regarding their medical care, rights which are codified in the Patients Bill of Rights and related statutes, NRS 449.710, as well as under the general privilege provisions of the Nevada code. In general, the intent is to protect the patient from unwanted and unwarranted release of information that is private and personal in nature.
Patients Bill of Rights
All patients have certain rights that are codified in Nevada law. These rights are designed to protect not only the patient, but also, to a certain extent, the provider of health care and the insurance carriers that underwrite much of the medical treatment received. The Patients Bill of Rights, NRS 449.710 et seq, place the patient at the forefront of managing and controlling his own medical treatment. This is true with regard to patients medical records as well. NRS 449.720 states that every patient of a medical facility has the right to retain his privacy concerning his program of medical care, and that all communications and records concerning the patient . . . are confidential. NRS 449.720(4).
The broad definition of confidential ensures that there are only a very limited set of circumstances under which a physician or health care provider may, without the consent of the patient, provide information, to include medical records, to third parties unless the third party is involved in the treatment of the patient. The above rule is true in every circumstance, unless a specific exception is provided by or mandated by law, as discussed below.
Privilege
Individuals may prevent the disclosure of certain information, such as medical information, based not on the subject matter of the communication, but on the relationship of the parties communicating. These communications are privileged and free from disclosure because society values the sanctity of the relationship and wishes to encourage candid disclosure to certain persons, such as physicians and attorneys. Under a claim of physician-patient privilege, the patient may prevent the disclosure of information relating to his diagnosis and treatment. The patient not only has the right not to be required to divulge privileged information, but he may also preclude others, including physicians and family members, from disclosing confidential information. NRS 49.225. A privilege is a right which must be claimed. It is, therefore, only applicable to those designated under the law as having possession of the right or privilege. In the case of a physician-patient relationship, the privilege belongs to the patient, and in the absence of the privilege due to minority, mental incapacity or death, the privilege belongs to the guardian, conservator or personal representative of the patient. NRS 49.235.
Under certain circumstances, the physician may exert the privilege on behalf of the patient. In those instances when the patient is unable to claim privilege, and the physician does so for the patient, the physician is presumed to have the authority to act for the patient, unless there is evidence to the contrary. NRS 49.235. Note, however, that the privilege belongs to the patient, not the physician, and the physician may not claim privilege on his or her own behalf, but only on behalf of the patient. The physician may not prevent disclosure in an effort to serve his own needs, and attempting to do so may result in disciplinary or legal action taken against the physician. For this reason, it is usually best to allow the patient or the patients representative make the decisions regarding a claim of privilege.
There are many exceptions to the physician-patient privilege. In most instances, the exceptions deal with legal proceedings or illegal activities. The nine exceptions to the privilege identified under NRS 49.245 are:
- Proceedings to hospitalize a patient for mental illness, where the doctor has determined the patient is in need of hospitalization;
- Court-ordered examination of a patients condition, with respect the particular purpose of the examination;
- Written medical or hospital records relevant to the patients conditions when the condition is an element of a claim or defense;
- Prosecution or mandamus proceedings under chapter 441 of NRS;
- Information communicated to a physician as part of an effort to procure a dangerous drug or controlled substance, or unlawfully procure the administration of the same;
- Written medical or hospital records provided under NRS 629.061;
- Records required to be maintained under NRS 453;
- Review by a screening panel under NRS 41A.003 et seq; or
- When the services of a physician are sought or obtained in order to commit or plan to commit fraud or any other unlawful act.
If one or more of these exceptions exists, the related communication is not privileged, and may be disclosed without the threat of legal retribution. The exceptions apply to medical records as well as to other forms of communication between the patient and the physician. Despite these exceptions, it is preferable for the physician to protect a patients confidential information until the physician can seek a legal opinion, or receive specific direction from the courts.
Rules Regarding the Medical Records of Mental Health Patients
Under NRS 433.482, patients admitted to mental health facilities, whether admitted for evaluation, treatment, or training, have the right to control or limit access to their medical records. There are three general circumstances under which the medical records of a mental health patient may be made available to someone other than the patient. First, staff, faculty, and medical personnel involved in the administration of the facility or the treatment of the patient may access the patients records. Access by these individuals is restricted, however, to those situations where disclosure would be appropriate. Second, mental health records may be made released if the patient waives his or her right to confidentiality. Although the statute does not require written consent, physicians would be well advised to seek a written waiver, and in consideration of the mental state of the patient, to ensure that the consent is informed. Finally, records need not be kept confidential if a court order authorizes access to a specific person or entity. In this instance, the custodian of the records has no choice but to provide the information specified in the order. Nonetheless, physicians are advised to proceed with caution, and seek the advice of counsel prior to agreeing to comply with a court order, particularly if the court order appears questionable. It remains the custodians responsibility to safeguard confidential information, and responding to an invalid order of the court may sometimes not be sufficient grounds to relieve the custodian from future liability.
As indicated, the general rule is that a patients privacy, with regard to his medical records and condition, should be respected and protected. There are a number of instances, however, when a custodian of medical records may be asked, or required, to provide records, often despite the express wishes of the patient. In those instances, the physician is well advised to seek the assistance of legal counsel prior to releasing patient information.
EXCEPTIONS TO PRIVACY – RELEASE OF MEDICAL RECORDS
Aside from the rules regarding privilege, there are numerous situations in which the treating physician is required to disclose part or all of a patients medical history and record. In general, these situations arise in the context of support for ongoing investigations, either legal investigations (criminal or civil), or investigations conducted by an organization chartered to enforce standards of conduct and professionalism within the medical community. In either case, the request for information leaves the physician little option with regard to compliance. In most instances, neither permission from the patient nor notification is required. As always, however, the physician is best served and protected by notifying a patient of all activity concerning his history of treatment.
Subpoenaed Records
Nevada law is very specific with regard to the production of documents in compliance with a court issued subpoena. Failure to comply with a subpoena issued by a court of competent jurisdiction constitutes contempt of court. If the court issuing the subpoena has not quashed or otherwise modified the subpoena, the custodian of the medical records must comply, or face the imposition of financial or other penalties.
In addition to a subpoena which issues as part of a legal proceeding, the state licensing board may conduct hearings or investigations which require the review of medical records. When investigating a complaint, the Board of Medical Examiners may issue a subpoena to compel the production of medical records and other papers. NRS 630.140. Nevada law requires that the recipient of such a subpoena comply within ten (10) days, after which the Board may ask the district court to compel compliance. The custodian of records must then show good cause why the subpoena was ignored. If the custodian cannot establish good cause, the court will issue an order to comply with the subpoena. Failure to comply with the court order will constitute contempt of court. NRS 630.140(4).
The subpoena issued must address, and be limited to, the issues raised by the complaint. Blanket subpoenas that are too broad in scope are not permitted. For instance, in Schlatter v. Eighth Judicial District Court, 93 Nev. 189, 561 P.2d 1342 (1977), the trial court had issued a subpoena for the petitioners entire medical record. The petitioner (Schlatter) challenged the legitimacy of such a broad, sweeping order. The Nevada Supreme Court stated the although a court could properly compel disclosure of matters in petitioners . . .medical records relating to the issues raised by her action, the trial court exceeded its jurisdiction by ordering disclosure of information that was neither relevant to the tendered issues nor likely to lead to the discovery of admissible evidence. The scope should be limited to matters properly being investigated by the court or medical organization issuing the subpoena. This decision should not be made by the physician alone, and any confusion must be cleared with the court immediately, in order to avoid sanctions for non-compliance.
When the custodian of medical records receives a subpoena, the first step in the process should be to consult legal counsel. There are very specific steps that must be taken in order to comply with the subpoena, as well as a number of protections afforded to the custodian and the patient. For example, the Nevada Revised Statutes provide for the payment of costs associated with the production of documents, if a motion is brought before the court requesting such payment. The custodian of records should consult an attorney, or at least ensure that he fully understands the process and options that exist before turning over information that could otherwise be privileged.
Compliance With the Subpoena
Under NRS 52.325, a physician or other custodian of medical records sufficiently complies with the subpoena calling for the production of documents if he provides a true and exact photographic, electrostatic or other acceptable copy which is properly authenticated. NRS 52.325(1). Proper authentication consists of an affidavit signed by the custodian which states:
The copies provided are a true and complete reproduction of the original medical record.
The original record was made at or near the time of the actual event, which may be an act, condition, opinion rendered, diagnosis.
The record was made from information transmitted by a knowledgeable person acting in the course of regularly conducted activities.
The affidavit must comply substantially with the form prescribed in NRS 53.260(3). The above requirements do not apply to items that cannot be copied by photostatic reproduction. Presumably in those instances, the original record would be delivered to the court by the custodian.
There are provisions within the statutes that address maintaining the confidentiality of the material while in the possession of the court, as well as the time limits for the return records once the legal proceedings have completed. NRS 52.335(1); 52.365. Records delivered to the court must be in a sealed container supplied by the custodian of the records. Once the records are in the custody of the court, the clerk of the court is responsible to ensure that only authorized persons view the medical records, and parties in receipt of the material, for the purposes of discovery, are required to ensure the records are returned to the clerk of the court for sealing and safekeeping. The clerk will return the records to the custodian (in a self-addressed, stamped envelope provided by the custodian) within 40 days of the order terminating the case, or within 40 days after the order terminating the appeal, if an appeal is taken. Please note that although the court has directed the custodian to provide the documents subpoenaed, the custodian must pay to have the records returned.
One item of interest is the responsibility of the custodian with regard to notification of delivery to the court. The custodian, not the court, is responsible to notify the attorney for the party who caused the subpoena to be issued that the documents involved have been delivered to the court. NRS 52.345. Physicians and other custodians must take care to ensure they comply with this requirement. If the custodian has retained the services of legal counsel, or has such counsel available to them, it may be wise to allow the custodians attorney handle the delivery and notification required under the subpoena and corresponding statutes.
Finally, at any time during the legal proceedings, the court may direct that original copies of the records be produced. This most often occurs when the authenticity of a copy has been challenged, or the interpretation of the contents of a document is required. If so directed, the custodian must produce the original. Often the subpoena will stipulate that the custodian must appear in person, but, if for any reason, the custodian is to appear in court to authenticate or otherwise interpret a record, the original record must be produced at that time. NRS 52.355.
If a physician or health care provider receives a subpoena for the production of medical records, care must be taken to protect the records prior to delivery to the party causing the subpoena to issue. Allowing someone associated with the action to review the records relevant to a complaint, before turning the records over in compliance with the subpoena, is punishable as a misdemeanor in Nevada. NRS 41A.053.
Investigations
Civil and criminal legal investigations and investigations conducted by the state medical boards, require access to medical record information. Nevada law, specifically one important statute, NRS 629.061, provides guidelines for such investigations — which may not necessarily be legal proceedings — that attempt to ensure the efficiency of the investigation while protecting the confidentiality of medical and other sensitive information.
NRS 629.061 requires that each provider of health care make available for physical inspection the health care records of a patient, when requested by: the patient or his designated representative, so designated in writing; investigators for the attorney generals office or a grand jury, when investigating certain violations of the law; and, authorized representatives or investigators of a state licensing board. NRS 422.540 to 422.570 inclusive, NRS 616D.200 et seq. The statute requires that reasonable efforts be made to make the records available. The statute is very specific as to who may request records, and to whom records may be given for review. Not all government organizations are authorized access under the rules of NRS 629.061. For instance, cases have held that a health care provider is not immunized under 629.061 for the disclosure of records to certain governmental organizations, such as the department of Motor Vehicles and Safety. See Jones v. Wilkin, 905 P.2d 166 (1995). Owners and operators of ambulance services must also make records available to the patient (or the patients designated representative) and the state licensing board. Of note, the statute does not expressly require the surrender of ambulance company records to individuals or bodies conducting criminal investigations. In all cases, the records that must be delivered are only those pertaining to sick or injured patients.
Records made available under this statute are not to be used in any public hearing, unless the patient has consented in writing, or appropriate steps are taken to protect the confidentiality and identity of the patient. NRS 629.061(4). These caveats do not apply, however, in a number of situations. For instance, if a provider of health care is responding to a written complaint or allegation, the state licensing board may provide medical records relevant to the complaint to the health care provider (presumably records that the provider does not already possess, but that will be used in investigating the provider). Once in receipt of the records the health care provider, and its attorney, must keep the information confidential. The statutes does not prevent the attorney generals office from using health care records in its possession during the course of a civil or criminal investigation of the patient or health care provider. Presumably, any portion of the investigation that is a matter of public record would contain the medical information relevant to the case. In essence, although the statute to provide the patient some guarantee of anonymity, the reality is that in most investigations, the identity of the patient likely will not be protected from disclosure. See NRS 629.061(4).
Persons or organizations disclosing information in compliance with the statute are immune from civil action for disclosing information. Failure to make records available, as provided for under NRS 629.061, is conduct punishable as a misdemeanor. NRS 630.405. In an effort to avoid a misdemeanor conviction, and to ensure that the letter of the law is complied with at all stages of an investigation, health care providers should consult with legal counsel before turning over medical records.
In addition to NRS 629.061, which deals with investigations in general, there are two specific instances when records must be turned over to law enforcement agencies. The first is when a patient is suspected of operating a vehicle or vessel while under the influence of intoxicating liquor or a controlled substance. Under NRS 629.065, the health care provider must allow inspection of the medical records, but should to the extent possible, limit access to those portions of the record that pertain to the presence of alcohol or a controlled substance in the blood, breath or urine of the patient. Under NRS 629.068, health care providers must produce a copy of the health care records of any offender confined at a state prison, if the director of the department of prisons, or his designee, requests the records. The records are not to be used in public hearings unless the patient has consented in writing, or procedures are used to protect the identity of the patient. Persons or agencies complying with requests made under these statutes, are immune form civil liability for disclosing the information.
GENERAL PROVISIONS
This section deals with several miscellaneous related to the retention and use of medical records. Health care administration, separate from any investigation or hearing, requires that certain rules be followed with regard to medical records. Simple tasks, such as the transfer of records from one facility to another, still must follow certain guidelines to ensure the confidentiality and integrity of the records. This section briefly discusses how Nevada law deals with these administrative issues.
Disciplining Physicians
In Nevada, disciplinary actions and the denial of a license, may result from the mismanagement of medical records by a physician. For instance, failure to maintain medical records, altering medical records, failure to file a record or make a record available for inspection and copying, as well as failure to report any person known to be in violation of this statute or the regulations of the board, may result in disciplinary action. NRS 630.3062.
Recording Determination of Terminal Condition & Declaration
If a patient has completed a declaration pertaining to the withholding or withdrawal of life-sustaining measures, and the attending physician has determined that the patient is in a terminal condition, the physician must ensure that the declaration and the terms of the declaration are made part of the patients medical record. NRS 449.622.
Transfer of Records
In general terms, if a patient is transferred within the medical system, the records of the patient must be transferred to the new facility on or before the actual date of patient transfer. Physicians and other health care providers should ensure that they understand the logistics of record transfer, including what information is included in the term medial records. The patient does not have to consent to the transfer of records, when transferred under the guidelines of these statutes. NRS 433B.200 & 449.705.
Health Care Record Retention
The health care records of a patient must be retained, in acceptable format, for a period of five (5) years after creation or receipt of the record by a health care provider. Acceptable format may include written form, as well as microfiche or other reduction, as long as the records may still be produced when required. NRS 629.051. The use of a computer system to create and maintain medical records is acceptable, so long as the system has features which limit access to the medical records stored in the computer. Retention of the medical records of a medical laboratory is addressed separately, and is subject to regulations established periodically by the State Board of Health. NRS 652.135.
Examination of Health Maintenance Organizations
Periodically, the State Board of Health and the Commissioner are required to make examinations of the affairs and quality of care provided by HMOs and their providers. Medical records of patients, as well as the records of physicians administering care under an HMO, are not subject to examination under this provision of the code, unless properly subpoenaed. For more details as to the specifics of examinations of HMOs, consult NRS 695C.310.
Business Relationships
Optometrists may form business relationships with other physicians to provide services to patients. In the event such a relationship is established, the optometrist may authorize other physicians to access the medical records of the optometrists patients, if the physician providing treatment to the optometrists patient. NRS 636.373.
The use and protection of medical records is a discipline in and of itself. Physicians and other health care providers must familiarize themselves with the guidelines for protecting the confidentiality of records, and should be careful each time patients medical records are copied, produced or otherwise released form the control of the records custodian. Respect for the patients rights and respect for the law can work together, resulting in a trusting relationship between the patient and the physician.