You'd better be able to answer these legal questions

How do I terminate a difficult patient? May I treat a minor without parental consent? How do I dispose of old patient records? We asked experts for the straight scoop.

By Wayne J. Guglielmo
Senior Editor

It's late springtime, and you and your office staff are ready to do some serious cleaning. You know, dust away the cobwebs. Toss out some old patient records.

No one's concerned about the cobwebs, but the records are another story: Which ones can you toss, and which need to be shelved a while longer? Suddenly, spring cleaning comes to a dead halt. Time to call your state medical society for some answers.

Toss or keep isn't the only stumper for many medical practices. There are other critical, difficult-to-answer questions. To identify the most common ones, we queried medical societies around the country about which questions doctors ask most frequently. Then we submitted those questions to a panel of health law experts.

Here's what we were told by Lee J. Johnson, in private practice in Mount Kisco, NY; Steven I. Kern of Kern Augustine Conroy & Schoppmann in Bridgewater, NJ; and Lawrence W. Vernaglia of Hinckley, Allen & Snyder in Boston.

1. How long am I required to keep a patient's medical record?

State laws differ. To find out what your state requires, contact your medical licensing board or state medical society.

Typically, states require that the medical records of minors be held longer than those of adult patients. In Massachusetts, for example, you must keep adult patient records for seven years from the date of the last entry or until a minor reaches age 9.

If you've retained records for the requisite period and are unsure of how to destroy them, again check with your medical licensing board. You may be required, for instance, to post notices in local newspapers. Obviously, patient identities and confidential data must be protected. So the notice should be worded along these lines: "Unless contacted by (date), Dr. (name)'s office will destroy records of all patients who have not been seen by the doctor since (date)."

Says Lawrence Vernaglia: "It's a wise precaution, even if not expressly required, to create and retain certificates of destruction for all discarded records. Such certificates should identify the documents destroyed, the date, and the method of disposal. Attach any newspaper notices to the certificates."

2. In responding to a patient's request for a copy of her medical record, can I release the record of another physician along with my own?

Steven Kern thinks you shouldn't release another physician's records along with your own, unless you have a separate patient authorization for the other physician's records. But Vernaglia argues that "medical professionals have an obligation" to release all pertinent records in their possession, even in the absence of separate authorizations.

Otherwise, says Vernaglia, a patient may bring an incomplete file to her next doctor, and that doctor would have no way of knowing that he was seeing only a partial patient history. (To determine whether your state has passed rules in this area, check with your licensing board.)

If you've been asked to reproduce a record, you may charge a fee, as long as it doesn't exceed the maximum allowable retrieval and copying fees set by state regulation. If in doubt about your state's cap, consult your licensing board or state medical society.

3. What are my responsibilities when a third party—an attorney or insurance company, for example—requests a copy of a patient's medical record?

Only authorized third parties have access to a medical record. Under state law, these third parties may include the patient's attorney, a representative of her insurance carrier, or an attorney with legal subpoena power.

Typically, in signing member contracts, patients grant insurers the right to request their medical records in order to evaluate and reimburse claims. With some exceptions, these are valid requests, and you should comply with them.

When records in your possession have been subpoenaed, greater caution is in order, since some lawyers have abused their subpoena power to harass and intimidate doctors.

If you've been served with a subpoena, says Kern, follow these simple steps: First, identify the court where the subpoena was issued, the nature of the case and the proceeding, and the scope of the information requested. Next, consider matters of process, including whether the subpoena was properly executed and signed. (Even a valid subpoena, however, doesn't legally compel you to waive your physician-patient privileges.) When in doubt, says Kern, consult an experienced health law attorney.

4. May I treat a minor without parental consent?

In general, if you treat a minor (in most states, a person under 18) you must obtain parental consent.

Several exceptions to this rule apply, however. "Emancipated minors" may consent to their own treatment and to the treatment of their children. Emancipation is determined on a case-by-case basis, often based on state statute. Generally, for a minor to be considered emancipated, his or her parents must have relinquished their right to custody and, therefore, have been legally relieved of their duty to provide parental support.

Emancipation of a minor may also occur upon marriage, induction into military service, by court order, or upon reaching the age of emancipation fixed by the state.

A second broad exception to the parental consent rule involves treatment for a variety of sex-related issues—pregnancy, sexually transmitted diseases, and sexual assault. "If the minor appears to have been sexually assaulted," says Kern, "you should notify the parent or guardian immediately, unless you believe it's in the best interest of the patient not to do so."

You may also treat minors who you believe are using—or are addicted to—a controlled substance. If voluntarily consented to, such treatment should remain confidential between patient and physician. "Though it is sometimes done, it is not legal to run any tests not specifically consented to by a patient," says Johnson.

5. What procedures do I follow in terminating a difficult patient?

You are under no obligation to treat any particular patient, as long as your refusal to initiate or continue care (excluding emergency care) doesn't discriminate against a member of a protected group. "But since difficult patients are frequently also litigious patients, physicians should be careful in how they go about terminating them," Vernaglia warns.

Notify the patient in writing that you will no longer provide care as of a specific date, typically no fewer than 30 days from the date of the notice. Don't give reasons for the termination, but you may want to outline the process, as specified by state law, for transferring or forwarding records.

You may decide to assist the patient in identifying other appropriate medical services. Alternatively, you may simply refer him to the state medical society for names of other doctors in the same specialty.

Send the notification of termination by certified mail, return receipt requested. During the notice period, you should continue to provide all necessary services or emergency care.

6. What are my legal and ethical obligations to my patients when I close my practice?

If you're closing your practice, or anticipate a leave of absence of more than three months, you should establish a procedure to ensure continuity of care for your patients, particularly those under active treatment. Help this group to identify other appropriate medical services and to transfer their records to their new providers.

All other patients should receive a general mailing announcing the date of the closing, steps for obtaining their records, and numbers to call for physician referrals. Physicians with very large practices may want—or be required—to publish a notice of the closure in the local newspaper.

7. May I charge interest on an unpaid bill?

As long as you provide patients with prior notice, there are generally no prohibitions against charging late fees and interest on unpaid bills. Similarly, you may place a delinquent payer on a cash-only basis if he has been informed beforehand.

You may not demand payment of an outstanding bill as a condition for filling out medical insurance forms. Nor may you refuse to provide medical records if you're aware they're needed for treatment purposes. "You're at risk for malpractice if the records in question could have been part of a treatment regimen and something goes wrong," says Johnson.

8. What are my legal obligations when it comes to mandated reports of certain diseases?

In most states, statutory authority for monitoring certain diseases is granted to the department of health. That office regulates which diseases must be reported, and how. If you're unsure of your specific responsibilities, check with the appropriate health officials in your state.

Generally, communicable and other diseases such as diphtheria, measles, mumps, and rabies must be reported in writing, within a prescribed number of hours, to the health officer in the jurisdiction where the diagnosis is made. Sexually transmitted diseases are also reportable, often directly to the state department of health.

You may also be required to report environmental diseases, typically within days of their diagnosis. These diseases include asbestosis, pneumoconioses, occupational asthma, and lead poisoning. Says Kern: "Specific reporting requirements and privacy protections may apply in certain cases, such as HIV or AIDS."

9. Must I supply an interpreter at the request of a deaf patient?

Yes. Under the provisions of Title III of the Americans With Disabilities Act, you are prohibited from discriminating on the basis of disability. Moreover, as a physician seeking a patient's informed consent, you are obligated, courts have ruled, to proceed in a nondiscriminatory manner.

If you deny a deaf patient an interpreter, you are effectively excluding that person from meaningful participation in the informed-consent process. Some states apply even stricter nondiscriminatory standards. If in doubt about the rules in your state, check with an attorney or the appropriate state agency.

10. May I refill a patient's prescription without an office visit?

Check with your medical licensing board for state-specific rules. Generally, your ability to refill a prescription without an office visit will depend upon patient condition, the type of medication prescribed, treatment-plan integration, and refill limit.

If a physical exam is required, or if the prescription in question is for a controlled substance or other medication that requires close follow-up, you should schedule an office visit before ordering a refill.

Wayne Guglielmo. You’d better be able to answer these legal questions.

Medical Economics

2001;12:47.