MEDICAL RECORDSThe material included here represents the current statutes on medical records in Ohio, as well as a compilation of guidelines developed from AMA ethical statements, trends in case law in other states and customary medical practices. This section should not be considered as a final opinion on the matter of medical records, but rather as a general overview of the area. Your medical record retention policy should be developed in conjunction with your attorney and professional liability insurer. CONFIDENTIALITYThe release of confidential records regarding a patient's treatment and/or physical condition is a matter within the control of the patient. The physician-patient privilege is personal to the patient, and if he or she elects to waive the privilege to obtain insurance or for some other reason, the information must be provided upon request. The confidentiality of the physician-patient relationship is protected by Ohio law. "A physician shall not testify concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient or if the patient is deceased by the express consent of the surviving spouse or the executor or administrator of the estate of such deceased patient or if the patient voluntarily testifies the physician may be compelled to testify on the same subject, or if the patient, his executor or administrator, files a medical claim...such filing shall constitute a waiver of this privilege with regard to the care and treatment of which complaint is made." ORC § 2317.02 (B) Recently, there has been a trend to enact legislation involving the confidentiality of records for specific diseases, conditions or health problems. As a general rule, the more damaging unauthorized release of medical information would be to the individual, the more likely it is to find legislation protecting those records. Laws concerning mental illness
(ORC
§ 5122.31), artificial insemination (ORC
§ 3111.36), AIDS (ORC
§ 3701.243), drug and alcohol abuse (42 CFR 2.11-2.15; ORC
§ 5122.53 - Amended and
renumbered § In certain limited circumstances, situations have arisen where the physician-patient privilege may be breached by the physician. These are almost always life -threatening situations. Ethical opinion 5.05 of the Council on Judicial and Ethical Affairs of the AMA recognizes a duty to warn in potentially life-threatening situations. The opinion addresses situations when "a patient threatens to inflict serious bodily harm to another person and there is a reasonable probability that the patient may carry out the threat." While the permission to breach the physician-patient privilege exists in Ohio as elsewhere, to date Ohio has not created a statutory duty to warn another individual of potential bodily harm by a patient. In cases involving mentally ill individuals, the law states: There is a duty to warn in the case of AIDS, but the duty exists only for the infected individual: "An individual who knows that he has received a positive result on an HIV test or has been diagnosed as having AIDS or an AIDS-related condition, shall disclose this information to any other person with whom he intends to make common use of a hypodermic needle or engage in sexual conduct." ORC § 3701.243 This duty to warn does not extend to other individuals: "No person with knowledge that an individual other than himself has or may have AIDS, an AIDS-related condition, or a positive HIV test shall be held liable for failing to disclose that information to any person unless disclosure is expressly required by law." ORC § 3701.244 ACCESS TO MEDICAL RECORDSMedical records developed by the physician are primarily for the physician's own use and constitute his personal property. However, on request of the patient a physician should provide a copy or summary of the record to the patient or to another physician, an attorney, or other person designated by the patient. Medical records should not be withheld because of an unpaid bill for medical services. Prior to the release of any medical information, the physician should require written authorization from the patient. The authorization provided should be examined to assure that the signature is authentic and is by a person of the age of majority or by his or her guardian or other personal representative. The authorization must cover the release of the documents requested. Simplified, routine insurance reimbursement forms can be prepared without charge, but a charge for more complex, complicated reports may be made in conformity with local custom. Certain Ohio statutes have recognized a right of access to medical records by individuals who do not have prior approval by the person who is the subject of those records. In instances where legislation has created a right of access to third parties, there has been an overriding need of the third party for that information. Statutes that give outside access (for other than auditing or research purposes) are almost always narrowly drawn and limit the extent of the access without the patient's approval. Such statutes are those involving AIDS (ORC § 3701.243 - spouse, sexual partner's access to results of HIV test; emergency medical personnel's access to result of HIV test, or alternatively, in the case of emergency medical personnel, to demand that the test be given - ORC § 3701.247); birth records (ORC § 3705.23 - lineal descendant's access to the "Information for Medical and Health Use Only" section of a birth record) and mental health records (ORC § 5122.31 - exchange of medical records among community mental health agencies, mental health boards and/or hospitals providing care to a person involuntarily committed). HOSPITAL RECORDS"A patient who wishes to examine or obtain a copy of part or all of a finalized medical record covering a prior inpatient stay or outpatient treatment shall submit to the hospital a signed, written request dated not more than sixty (60) days before the date on which it is submitted. The patient who wishes to obtain a copy of the record shall indicate in the request whether the copy is to be sent to the patient's residence or held for the patient at the hospital. Within a reasonable time after receiving a request that meets the requirements of this division and includes sufficient information to identify the record requested, the hospital shall permit the patient to examine the record during regular business hours or shall provide a copy of the record in accordance with the request, except that if a physician who has treated the patient determines for clearly stated reasons that disclosure of the requested record is likely to have an adverse effect on the patient, the hospital shall provide the record to a physician designated by the patient. The hospital shall take reasonable steps to establish the identity of the patient examining, or requesting a copy of, the patient's record." ORC § 3701.74 (C) "If the hospital fails to furnish a finalized medical record as required... the patient who requested the record may bring a civil action to enforce the patient's right of access to the record." ORC § 3701.74 (D) EMPLOYMENT RECORDS"No employer or physician, other health care professional, hospital, or laboratory that contracts with the employer to provide medical information pertaining to employees shall refuse upon written request of an employee to furnish to the employee or former employee or their designated representative a copy of any medical report pertaining to the employee. The requirements of this section extend to any medical report arising out of any physical examination by a physician or other health care professional and any hospital or laboratory tests which examinations or tests are required by the employer as a condition of employment or arising out of any injury or disease related to the employee's employment. However, if a physician concludes that presentation of all or any part of an employee's medical record directly to the employee will result in serious medical harm to the employee, he shall so indicate on the medical record, in which case a copy thereof shall be given to a physician designated in writing by the employee." ORC § 4113.23 EYEGLASSES and CONTACT LENSES PRESCRIPTIONSPrescriptions for eyeglasses and contact lenses must be given to a patient at the time of examination: "A physician or surgeon licensed to practice medicine or surgery in this state, on completion of a vision examination and diagnosis, shall give each patient for whom he prescribes any vision correcting item, device, or procedure, one copy of the prescription, without additional charge to the patient. This prescription shall include the following:
Any supplier who fills a prescription for contact lenses furnished by a physician or surgeon or by an optometrist shall furnish the patient with written recommendations to return to the prescribing physician, surgeon or optometrist for evaluation of the contact lens fitting. ORC § 4731.44 (B) RETENTION OF MEDICAL RECORDSThere are few statutory requirements that medical records be preserved, except those relating to controlled substances, industrial cases, and federal and state reimbursement programs. Physicians who participate in preferred provider plans (PPOs) or health maintenance organizations (HMOs) may agree by contract to maintain records for a certain period of time. Records should be retained for at least the period of the statute of limitations to protect the physician or his estate (See: STATUTE OF LIMITATIONS). Due to decisions by the Ohio Supreme Court defining the time when a cause of action accrues as the later of when a patient discovers the injury or when the physician/patient relationship terminates, physicians should retain records for a period to be determined in consultation with their attorney and their professional liability insurer. Many physicians may choose to retain the significant part of their medical records indefinitely. Upon retirement or termination of a physician's practice, the physician should notify current patients of the need to find another physician. With proper patient authorization, the medical records should be released to the designated physician. If the patient does not request that the records be transferred to another physician, the records should be retained by the physician or an authorized custodian. In the case of the physician's business records, federal income tax limits for audits are three years in most cases, six years for others, and no limit for others (fraud). While this booklet does not purport to deal with federal law, I.R.S. limitation periods should be kept in mind when records might substantiate a physician's statement of his income. TRANSFER OF MEDICAL RECORDSUpon retirement or termination of practice, patient records may be transferred to another physician for custody. Patients should be notified of the transfer of records and informed that the records will be forwarded to a physician of their choice. A reasonable charge may be made for copying records. (See also: ADOPTION; ADULT ABUSE; AIDS/AIDS-RELATED CONDITION; BURNS, REPORTING OF; CHILD ABUSE; COMMITMENT OF MENTALLY ILL; CRIME, FAILURE TO REPORT; DURABLE POWER OF ATTORNEY FOR HEALTH CARE; PRIVILEGED COMMUNICATION; VITAL STATISTICS )MEDICAL RECORDS |
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