Physicians Insurance A Mutual Company - medical professional liability insurance in Washington, Oregon, and Idaho

The premier provider of medical professional liability insurance for physicians,
other medical professionals, clinics, and hospitals in Washington, Oregon, and Idaho.

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Communication & Rapport

Q. I recently terminated a patient from our practice because the patient missed 3 appointments without prior notice or explanation. We have a long standing internal policy that three missed appointments will result in discharge from the practice. The patient called and challenged this termination because she was not aware of our policy. Do we need to allow the patient back into the practice?
A. The short answer to this question is “not necessarily” but you may want to make an allowance in this case only because it appears the patient was unsure of her responsibilities as a patient in your practice. A great way to avoid this type of confusion regarding patient rights and responsibilities is to communicate office policies and expectations at the outset when the patient first establishes care in your practice. One method of communicating this information is with a patient information brochure”. For additional information, please see the article Communicating Office Policies.

Q. We have a female patient who often presents for appointments wearing inappropriate clothing that is very revealing and quite provocative. Her dress can be disconcerting to other patients and office staff. We would like to address this issue with this otherwise great patient, but we are not sure she will heed our advice. If she does not dress more appropriately in future visits we do not want to continue seeing her. Can we do this? How do we document this issue to support our decision to terminate care if necessary?
A. It is your right to establish certain expectations for patients treating in your practice. Whether the issue is inappropriate clothing, hygiene issues, frequent tardiness, noncompliance, disruptive behavior, etc., you are best served by communicating these expectations in a clear and concise manner as well as communicating the consequences of the patient’s failure to adhere to these expectations. A great tool for documenting your expectations and agreement with this patient is a patient care agreement. For additional information on how to establish and communicate expectations for patients, please see the article Patient Care Agreements.

Q. I have a patient who recently experienced an unanticipated outcome as a result of my treatment. This complication has created significant anxiety and worry for the patient and the patient’s family. Also, additional treatment and subsequent therapy has had a financial impact on this patient. I am having a meeting with the patient and the patient’s spouse at which time I want to express my deep regret for the complications suffered during the course of treatment. While I believe my care was absolutely appropriate, I am not sure the patient will agree in light of the outcome. Although my primary concern is for the patient and his well being, I am moderately concerned that a claim may occur in the future. How do I handle this meeting with the patient and patient’s spouse? Can I say that I am sorry and apologize without setting myself up for future problems?
A. Your concern regarding patient apology is certainly understandable. Your natural desire to provide comfort to the patient and to express your concern and caring for the patient’s predicament may be seen as conflicting with your concern about potential litigation if the patient concludes that his complication was the result of an error in treatment. Our experience is that authentic expressions of empathy and apology, handled appropriately, actually serve to reduce the likelihood of a claim. These efforts on your part are very much appreciated by the patient and family. Transparency and authenticity serve to defuse the notion that the provider is withholding information about what occurred and expressions of empathy strengthen the bond between you and the patient. Therefore, apology and compassion are the right things to do. With any unanticipated outcome and prior to meeting with a patient or family, please contact our Risk Management Department for advice. For additional information on this topic, please see the article Apology: The Right Thing to Do.

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Medical Records

Q: How much can I charge for copies of the records?
A: For Washington practitioners and facilities:

The Washington State Department of Health discourages charging a fee in cases of financial hardship. Refusing to provide copies of records for treatment purposes is unethical. In other situations, Washington State and federal law does provide that a “reasonable” or “cost-based” fee may be charged. In Washington State, effective July 1, 2011, through June 30, 2013, these fees may not exceed the following:

Copying: $1.04/page for the first 30 pages plus $0.79/page thereafter (HIPAA prohibits charging a patient or the patient’s representative (someone authorized to make health care decisions on behalf of the patient), handling fees, chart-pulling fees, or per-page fees in excess of the direct cost of materials)
Clerical/labor: Up to $23.00 (HIPAA provides that this fee cannot be charged to a patient or the patient’s representative (someone authorized to make health care decisions on behalf of a patient)
Certification: $2.00

Q: Who is a patient representative and can a patient representative authorize the release of health care information? Is an attorney considered to be a patient representative?
A: The patient’s representative is the individual who has been granted the authority to make health care decisions on behalf of a patient. This may be due to a power of attorney related to health care or by court appointment of a guardian. If the patient is alive but does not have the capacity to sign a records release authorization, a person authorized to make health care decisions on behalf of the patient can sign the records release authorization. A person authorized to make health care decisions is a member of one of the following classes of persons in the following order of priority:

The individual, if any, to whom the patient has given a durable power of attorney for health care.
The patient’s spouse.
Children of the patient who are at least eighteen years old.
Parents of the patient.
Adult brothers and sisters of the patient.
If the patient is deceased, the personal representative of the patient (executor of the patient’s estate) can sign a records release authorization. If there is no personal representative, then a person authorized to make health care decisions for the patient as listed above can sign the release.

An attorney who does not have authority to make health care decisions on behalf of the patient is not a patient representative though he or she may represent the patient in legal matters. Likewise, individuals may present themselves as having power of attorney, but only individuals who have a power of attorney related specifically to health care can authorize the release of health care information. Someone who has a power of attorney related to financial issues may or may not be the same person who has been granted a power of attorney related to health care. You should ask the patient representative for a copy of any document designating a person other than the patient as a surrogate decision maker. The document should be made part of the patient’s medical record.

Q: How long should I retain copies of medical records?
A: The safest approach is to keep records indefinitely. If you cannot do this, the recommended minimum time to retain records is:

6 years from the date of a patient’s death;
10 years from the date of a patient’s last medical service; or
21 years from the date of a child’s birth for pediatric records and for the obstetric patient’s prenatal records.
For minor patients, records are retained for the above-referenced time frames or until the child reaches 21 years of age, whichever is longer.

For example, if you last saw a minor patient when he or she was 9 years of age, you would want to keep the record until the patient’s twenty-first birthday. If the patient was 11 years old or older when he or she was last see, you would want to retain the entire record until 10 years after the date of the patient’s last medical service.

Q: What do I do when I receive a discovery request or subpoena for records, deposition, or trial from a lawyer?
A: In Washington State, before a discovery request or subpoena is served, the health care provider must be given at least 14 days advance written notice by the attorney issuing the request or subpoena. A copy of the advance notice is also sent to the patient or patient’s attorney. The notice must indicate from what provider the information is sought, what information is sought, and the date by which a protective order must be obtained to prevent the provider from complying with the discovery request or subpoena. The health care provider may not, without the patient’s consent, disclose the information sought if the requestor has not complied with the notice requirements.

If the notice requirements have been met, the provider must disclose the requested information in response to the discovery request or subpoena unless a protective order is issued by the court or the information is otherwise protected by law as described in the next paragraph. The discovery request or subpoena must be placed into the patient’s record.

The fact that notice requirements have been met and that the release is pursuant to a discovery request or subpoena for records does not modify the terms and conditions of disclosure under laws forbidding the compelled disclosure of information about HIV/AIDS, STDs, mental health, or substance abuse. You cannot disclose such information unless the patient specifically consents in writing or the party requesting disclosure obtains a specific court order signed by a judge, not an attorney. A general subpoena or request for discovery is not enough. If you receive an advance notice of a subpoena or discovery request without the patient’s signed authorization for the release of information about HIV/AIDS, STDs, mental health, or substance abuse, we recommend you send the parties a letter that explains your dilemma. It should include language similar to this:

“I will comply with the (subpoena) (discovery request) to the extent allowed by law. If the patient’s record contains any information which requires the patient’s specific consent for disclosure, I will need the patient’s specific written consent or a specific court order before I can release such information.”
If you delete information from the record, advise the requestor that information has been deleted as required by law, but do not specify the nature of the information.

Of course, if you are involved in the litigation as a party, you should consult with your counsel about the appropriate response to a request for records. For additional information regarding the release of medical record information pursuant to a subpoena, please see the article Responding to a Subpoena for Medical Records or Deposition and the form Response to Defective Subpoena or Incomplete Request to Disclose PHI.

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Medical-Legal Issues

Q: Who pays for a patient’s interpreter?
A: The provider or practice cannot charge the patient for interpreter services. Patients must be fully informed of the availability of a qualified interpreter at no cost to the patient. Some providers who care for DSHS patients do qualify for reimbursement. However, coverage varies and you should not rely on reimbursement without first contacting the DSHS Medical Assistance Administration. For additional information regarding interpreter services, please see the article Interpreters: Working with Patients with Limited English Proficiency.

Q: Can I terminate a patient from my practice?
A: Generally, you can terminate your relationship with a patient at any time and for any reason. The exceptions are that you may not stop treating a hospital inpatient, a patient in unstable condition or a number of patients from any special population or socioeconomic group. This will protect you from charges of abandonment or discrimination. In addition, federal and state law protecting the disabled may prevent you from discharging a patient whose noncompliance is the result of a physical or psychological disorder. For additional information, please see the article Termination of Care and the sample Termination of Care Letter.

Q: What should I do if I get a letter from my medical licensing board notifying me of a patient complaint?
A: Call Physicians Insurance Claims Department. Claims staff will help you respond and determine whether a health law attorney should assist you with the matter. Do not delay in reporting any type of medical licensing board investigation.

Q: Can a health care assistant administer routine vaccines when standing orders have been reviewed by a clinic’s medical director and signed off at each site?
A: No. In Washington, standing orders are not allowed. The practitioner supervising the health care assistant must be physically present and immediately available in the facility during the administration of injections or vaccines (WAC 246-826-030). For additional information regarding health care assistants, please see the article Washington State Department of Health Regulation of Health Care Assistants.

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Patient Care Issues

Q: I attended one of your CME programs and the speaker recommended developing a system for tracking lab and x-ray studies. What do you suggest for a practice that does not have an electronic medical record?
A: Many practices use a log book to track diagnostic tests performed outside the office, including radiology studies (such as mammography and chest films), pathology studies, prenatal lab work, or other tests. The log book displays the name of the patient, the date of the outgoing requisition, the date the report is returned, and the date the patient is notified. With such a system, physicians and staff members can tell at a glance if a test result has not been received. For additional information on test tracking and patient reminder systems, please see the article Failure to Monitor Diagnostic Tests. For a sample tracking tool, please see the Diagnostic Test Tracking Log.

Q: I have many patients who take a number of different medications and I am looking for a convenient way to document this information in their medical record. Do you have any suggestions?
A: Many medical malpractice claims are due to alleged medication errors. Properly maintained medication records can help reduce errors and can be crucial to the defense of a malpractice claim. We recommend using a medication flowsheet to document every medication a patient takes. Include the date of the prescription, the name of the medication, the dose, route, amount, duration, number of refills, and the signature of every refill provider. Place the flowsheet in the font of the chart where is will be easily accessible. For additional information regarding how to reduce medication errors, please see the article Medication Records. Also see our Medication Flowsheet which is available free-of-charge to all insureds.

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Practice Management Issues

Q: How much notice do I have to provide to my patients regarding the closing of my practice?
A: The more advance notice of closure that you can provide to your patients, the better. This will allow patients time to make unhurried, appropriate decisions about who will assume their care. Unless extreme or unusual circumstances dictate, it is appropriate to notify patients at least 60 days in advance of the date your office will close. In certain circumstances, where a patient’s options for a new provider are limited by geography or specialty, you may want to notify patients much earlier (90 days or more) to allow them sufficient time to make appropriate arrangements for care. The goal is to avoid a negative impact on patient care by allowing for a smooth transition in treatment. By providing adequate notice of closing, you can reduce or eliminate the potential for a claim of patient abandonment. For additional information regarding the closing of a practice, please see the articles entitled Closing Your Practice: A Risk Management Perspective and Closing Your Practice: A Business Perspective. Information regarding this topic is also available from the Washington State Medical Association at
http://www.wsma.org/files/Downloads/PracticeResourceCenter/closing_practice.pdf.

Q: A patient is requesting that I write off her bill because she feels that she did not receive the level of care that she expected. In looking over her chart, I can see where I might have done some things differently which may have resulted in a better outcome. If I write off her bill, won’t she look at this as an admission of guilt?
A: Many physicians are concerned that offering to waive a bill or pay part or all of a patient’s medical expenses might be interpreted as an admission of liability. While some patients may feel this way, most interpret such assistance as a compassionate gesture. Furthermore, Washington State law provides that furnishing, offering, or promising to pay medical expenses is generally not admissible as proof of liability in a malpractice suit (RCW 5.64.010). If a patient requests a full or partial refund because of an adverse outcome, you should contact the Claims Department at Physicians Insurance for advice. For additional information regarding patient billing complaints, please see the article Patient Billings and Collections.

Q: How long do I have to keep copies of insurance company EOBs and payment documentation?
A: The recommendation of the Medical Group Management Association is to retain these business documents for a minimum of five years. Though we believe these dates to be sound, you may wish to check with your accounting or tax professional or with your business attorney if you have questions regarding the retention of these and other financial or business documents. For additional information regarding the retention of business documents, please see the article Business Records Retention Terms.

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Treatment of Minors

Q: Can parents sign records release authorizations for their minor children?
A: Parents may sign records release authorizations for their minor children in most cases. However, if the minor is emancipated, married, or authorized to consent to health care without parental consent according to federal and state law, only the minor may authorize the release of health care information pertaining to his or her care for which the minor was allowed to consent on his or her own. In Washington, minors may consent at age 14 for treatment related to HIV/AIDS or sexually transmitted diseases; at age 13 for mental health care or outpatient substance abuse treatment; and at any age for birth control or pregnancy-related care. For additional information regarding the treatment of minors, please see the article Treatment of Minors and the Handling of Their Protected Health Information.

Q: Who can sign a records release authorization for a minor if the parents are divorced?
A: In Washington, if the parent represents to the health care provider that he or she is authorized to consent to treatment for the minor, the parent can also sign a records release authorization. This applies regardless of whether the parents are married, unmarried, or separated at the time of the request. It does not matter if the consenting parent is or is not the custodial parent. The right to give consent cannot be removed through a divorce order or decree alone. For additional information regarding the treatment of minors, please see the article Treatment of Minors and the Handling of Their Protected Health Information.

Q: What should I do when the parents of a minor child disagree on what treatment should be provided?
A: In Washington, you may treat a minor when one parent provides consent to the care even if the other parent demands that you not treat the minor. The status of the marriage, lack thereof, or which parent has custodial rights does not impact a parent’s right to provide consent, and your reliance upon that consent. A court order limiting the parental rights of one or both parents would be an exception to this general rule. RCW 26.09.310 protects a provider who is relying on either one parent or guardian for consent to treat a minor: “…No health care provider …shall be liable for damages in any civil action brought by a parent or guardian based only on a lack of the parent or guardian's consent for medical care of a minor child, if consent to the care has been given by a parent or guardian of the minor.”

For additional information regarding the treatment of minors, please see the article Treatment of Minors and the Handling of Their Protected Health Information.

Q: Can minors ever provide consent for treatment for themselves or anyone else?
A: Yes:

In Washington

If emancipated (legally independent) or married to someone age 18 or older.
For emergency care when it is impractical to obtain parental consent.
For birth control and pregnancy-related care at any age.
For mental health or outpatient drug- and alcohol-abuse treatment at age 13.
For STDs including HIV/AID, at age 14.

In Oregon

At age 15 or above for most types of medical treatment.
For emergency care when it is impractical to obtain parental consent.
For birth control, pregnancy-related care, or STDs at any age.
For chemical dependency or outpatient mental health care at age 14.

In Idaho

If emancipated, married, or has been married.
For treatment of infections, contagious, or communicable diseases beginning at age 14, if the disease is required to be reported to a local health officer.

(Other treatment of minor issues in Idaho law are not easily summarized and we recommend you contact a Risk Management Consultant or attorney.)

For additional information regarding the treatment of minors, please see the article Treatment of Minors and the Handling of Their Protected Health Information.

Q: Is a minor’s parent liable for treatment costs when the minor provides consent for the treatment?
A: For other than emergency care, parents or guardians are not liable for the cost of care provided without their consent when the minor has the right to consent without consulting the parents. In these situations, the minor should be informed that he or she will be responsible for the cost of the care. For additional information regarding the treatment of minors, please see the article Treatment of Minors and the Handling of Their Protected Health Information.

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