FAQ - Medical
Frequently Asked Legal
Questions - Medical
Should
professional fees be waived or refunded when a
patient is dissatisfied?
Not always. It depends on the particular situation.
First give the patient the opportunity to describe
the reason for their dissatisfaction. Attempt
to correct the situation, if possible. If the
patient demands a refund, waiver of fees, or the
issue cannot be remedied, contact FPIC's Risk
Management Department or personal counsel for
specific guidance. What some may interpret as
an act of accommodation, others may view as an
admission of liability.
Are
x-ray films the property of the patient?
No. X-ray films are the property of the originating
physician, dentist, or radiology group. By law,
the patient may access their films and upon
request, be furnished a copy. However, original
films should never be released. The patient
may be charged the cost of reproducing x-ray
films.
May
records be furnished to an HMO/MCO without an
authorization from the patient?
No. However, most HMO/MCO providers require
such authorization as a condition of coverage.
Therefore, the HMO/MCO should be asked to furnish
a copy evidencing the patient's authorization.
What
action should be taken when a summons and complaint
is received?
Immediately notify FPIC by calling the Claims
Department at 800-741-3742, ext. 3293. If you
are served, FPIC only has a limited number of
days to assign a defense attorney and prepare
a response to be filed on your behalf. It is
important to not discuss the case with the patient,
the patient's attorney, or other parties involved
in the care and treatment of the patient. You
should also gather and secure the patient's
records immediately.
What
action should be taken when a patient is noncompliant
or refuses to undergo diagnostic studies, care,
or treatment?
Document your recommendations and the patient's
noncompliance. Advise the patient of the potential
consequences their noncompliance or refusal
may cause and document your discussion. Confirm
the patient's noncompliance, your subsequent
discussion, and the potential consequences in
a letter to the patient sent certified mail,
return receipt requested. Send a copy of the
letter by regular mail as well. Consider withdrawing
from the patient's care, but first review the
language of any managed care contracts that
may apply to the situation and seek guidance
from FPIC's Risk Management Department or personal
counsel. If you practice in a group setting,
it may be necessary to withdraw on behalf of
others in the group as well as the practice.
What
is the effective date for the new HIPAA privacy
rules?
Although the HIPAA Privacy Rule became effective
April 14, 2001, it has not been finalized and
will be the subject of future updates anticipated
through the fall of 2002. Physicians and dentists
covered by the new rule must comply by April
14, 2003.
Does
state or federal law set forth a specific manner
in which obsolete patient records must be destroyed?
No. However, patient records must be destroyed
in a manner that protects patient confidentiality.
The best way to dispose of records is by shredding,
mutilation, or similar protective measures.
If arrangements are made with third parties
or entities for the destruction of patient records,
a written agreement should be obtained clearly
obligating the entity to safeguard confidentiality
as well as indemnity and hold harmless you and
your practice from any breach of confidentiality
for which they are responsible. Before destroying
records, confirm the timeframes of the specific
record retention laws in the state in which
you practice.
What
is a deposition?
A deposition is testimony given under oath before
a court reporter. Depositions are important
in the preparation of a case for trial. Depositions
also freeze testimony and can be used to impeach
your credibility if you deviate from them later.
They are used to discover facts of the case
and to uncover additional witnesses. Depositions
are also used to narrow the issues of the case.
Failing to appear for a deposition subjects
you to the potential to be held in contempt
of court. Always consider exercising your right
to legal counsel before providing deposition
testimony.
Does
the physician-patient relationship end at the
time insurance coverage expires or a managed
care plan terminates?
No. Once established, the physician-patient
relationship does not end merely because insurance
is no longer available or a change in managed
care coverage occurs. A physician's responsibility
to the patient continues unless and until the
patient severs the relationship or the physician
provides proper notification to the patient
of the intent to withdraw from providing further
care and treatment. Furthermore, the physician's
responsibility to treat the patient may extend
until the patient becomes medically stable.
Always seek legal or risk management guidance
before terminating the physician-patient relationship.
Are
sign in sheets in waiting rooms prohibited by
the HIPAA privacy rule?
No. However, a sign in sheet or registration
log that solicits the reason the visit or other
personal health information should not be used.
Do
the consent requirements under HIPAA restrict
the ability of providers to consult with other
providers about a patient’s condition?
No. A provider with a direct treatment relationship
with a patient would have to have initially
obtained consent to use that patient’s
health information for treatment purposes. Consulting
with another healthcare provider about that
patient’s case falls within the definition
of "treatment" and is, therefore,
permissible. If the provider being consulted
does not otherwise have a direct treatment relationship
with the patient, that provider does not need
to obtain the patient’s consent to engage
in the consultation.
What
is arbitration and what benefit does it provide
for medical malpractice claims for doctors and
patients?
Arbitration is the submission of a dispute
to one or more impartial persons for a final
and binding decision. Through arbitration, patients
and physicians both benefit because they are
able to more promptly resolve malpractice claims
and for less cost to each party. It is also
believed that arbitration panels will help to
avoid unreasonable jury awards, thereby further
lowering costs. These cost savings would positively
impact medical professional liability rates
and the cost and availability of healthcare
services.
Is
it against the law to refer to a medical assistant
as a "Nurse" in the office practice
setting in the State of Florida?
Yes. Florida Statute 464.016, paragraph
(2)(a) indicates that "using the name or
title "Nurse," "Registered Nurse,"
"Licensed Practical Nurse," "Advanced
Registered Nurse Practitioner," or any
other name or title which implies that a person
was licensed or certified as same, unless such
person is duly licensed or certified" constitutes
a misdemeanor of the first degree, punishable
as provided in s.775.082 or s.775.083.
Are
there laws which govern the legibility of written
prescriptions?
Yes. Effective July, 1, 2003 Florida Statute
456.42 requires that all written prescriptions
must be legibly printed or typed and must be
signed by the prescribing practitioner on the
day of issue. Further, the prescription must
contain the following:
Name of the prescribing practitioner
Quantity of the drug prescribed in both textual
and numerical formats
Date of the prescription with the month written
out in textual letters
Directions for use of the drug
Name and strength of the drug prescribed
Failure to issue prescriptions as set forth
by the new requirements is a violation of Florida
law and will subject the practitioner to disciplinary
action of their license to practice.
What
action should be taken when a medical error
is suspected or occurs?
Contact FPIC's Risk Management Department
for guidance as soon as possible. Make no admissions
of liability. Federal and/or State reporting
requirements under strict time constraints may
apply. Always attempt to discuss the situation
with personal counsel or FPIC before meeting
with hospital risk management.
Does
the HIPAA Security Rule require that patients
be provided a Privacy Notice?
Yes. Effective April 14, 203, patients must
be provided with a privacy notice detailing
the rights and responsibilities of the patient
and the practice in protecting the privacy and
confidentiality of protected health information.
The privacy notice should be shared with patients
upon delivery of service, or as soon as feasible
in an emergency. It must be available to patients
in print, written in clear language, and be
posted at each service site - ideally the waiting
room. The patient's acknowledgement that the
privacy notice was provided must also be obtained.
The privacy notice, the patient's acknowledgement,
and each notice revision must be retained for
a six-year period. Upon their request, patients
must be furnished a copy of the privacy notice.
May
the medical records of a deceased patient be
furnished to the surviving spouse?
Not automatically. Under Florida statutes,
medical records may only be furnished to the
patient of the patient's "legal personal
representative." In the case of a deceased
patient, it is required that the person seeking
the record be appointed as the "Personal
Representative of the Estate" of the patient.
Alternatively, a party seeking production of
the decedent's medical records may file a "Pure
Bill of Discovery" to obtain a Court Order
to produce the records. A standard authorization
for release of medical records is sufficient,
providing that the requesting party executes
the authorization "As Personal Representative
of the Estate of (patient name), Deceased."
Should
professional fees be waived or refunded when
a patient is dissatisfied?
Not always. It depends on the particular
situation. First give the patient the opportunity
to describe the reason for their dissatisfaction.
Attempt to correct the situation, if possible.
If the patient demands a refund, waiver of fees,
or the issue cannot be remedied, contact FPIC's
Risk Management Department or a personal attorney
for specific guidance. What some may interpret
as an act of accommodation, others may view
as an admission of liability.
Who
is a "covered entity" under HIPAA?
A health plan or payor, a healthcare clearing
house, such as a billing service, or a healthcare
provider such as a physician, dentist, hospital
or pharmacy of any healthcare provider who transmits
any healthcare information in electronic form,
which includes telephone, fax, and computers.
Must
a physician sign all progress notes made?
Although state law does not specifically
require a signature, Medicare, Medicaid and
most HMO's require such documentation.
When
a patient leaves the hospital AMA (against medical
advice) is the physician-patient relationship
automatically severed?
No. The patient can assert that the AMA
was purely for some aspect of treatment, such
as surgery or physical therapy, but not all
care and treatment. Always document and record
in the case of an AMA and send a letter to the
patient confirming their forfeiture of care
and the potential consequences of their actions.
Ask the patient to reconsider, but do not deny
the patient access to ongoing care. Consider
terminating the physician-patient relationship.
Depending on the circumstances, seek legal guidance
before taking such action.
Do
mandatory reporting requirements set forth by
Florida statues pre-empt HIPAA privacy provisions?
Generally, yes. A good example would be
FS 381.003 which requires a physician that diagnoses
or suspects the existence of a disease of public
health significance to immediately report the
fact to the Department of health. However, because
the legal waters pertaining to most HIPAA privacy
provisions have yet been tested, it is wise
to seek legal or risk management guidance when
uncertainty may arise.
What
is meant by the legal phrase res ipsa loquitur?
A Latin phrase meaning "the facts speak
for themselves." Res ipsa loquitur is a
rule of evidence under which an individual is
deemed, under certain specific circumstances,
to be negligent by mere occurrence of the incident,
and where the law presumes that the injury could
not have occurred by tort negligence. An example
of a res ipsa loquitur case would be a retained
foreign body claim.
