OUM Professional Liability Insurance

Should I write off a patient's bill?

According to your professional liability insurance policy with OUM, all claims must be reported to OUM as soon as practical. Failure to do so puts you at risk for being denied insurance coverage should that claim or incident result in a lawsuit. OUM also encourages the reporting of incidents that you believe may develop into a claim in the future. A patient’s request for a waiver of an outstanding balance falls within the definition of a claim. Should you receive a request from a patient for a bill write-off or if you are considering writing-off a patient’s bill, you are encouraged to contact OUM’s Claims Department for guidance. You will be advised if any additional action needs to be taken and if additional information and/or documents will be needed.

In instances of clear or questionable medical error or in instances where the patient is extremely dissatisfied with the care that was rendered, the act of writing off the patient’s bill may be seen as an act of good will and may avoid a lawsuit. However, there are no guarantees. To reduce the appearance of admitting liability following an adverse event or unexpected outcome, communicate with the patient and document that the bill is being written off as a gesture of goodwill.

In instances where the patient is unhappy over collection attempts of a bill and is demanding a write-off, you must decide whether or not you want to continue to pursue collections. Your decision may be based upon the amount of the bill and how much “hassle” you are willing to undergo and how you feel the patient will react to your decision, etc. If you feel the care and treatment you provided and the charges for the care rendered was appropriate, you have several options, including:

Denying the patient’s request to write off the bill, and continue pursuing collections.
Discontinuing pursuing collection attempts, but keeping the balance due on the records.
Agreeing to write off the bill.

If you deny the request, send the patient a letter stating you have reviewed the care and treatment rendered and the charges, found it to be in order and are respectfully denying his/her request to write off the bill. If you decide to write off the bill, send the patient a letter stating you are writing the bill off as a goodwill gesture. You should be aware of federal anti-fraud, abuse and anti-kickback laws and consult your personal counsel regarding the application of these laws. Write-offs for risk management purposes should be considered on an individual basis and not offered routinely. If you decide to write off a patient’s bill, it is generally best to write off the entire bill, not just the co-payment or deductible. For Medicare, if the claim has already been billed, the provider may not write off a bill without triggering reporting obligations. If the claim has not been billed, the provider may forgive a bill and not bill Medicare without triggering reporting obligations.

My patient is undergoing financial hardship. May I bill the patient's insurance and write off the co-pays or deductible?

Medicare rules state that routine write-offs of co-pays and deductibles constitute billing fraud and abuse. Private insurers often have similar rules. Thus, practitioners should carefully avoid routine write-offs. If, however, the patient has a legitimate financial hardship, Medicare (and most private insurances) will allow a write-off to occur. To protect themselves, practitioners should get documentation from the patient explaining the financial hardship in as much detail as possible. At a minimum, the patient should be asked to send a letter; if possible, tax returns, bankruptcy and foreclosure papers could also be helpful documentation.

May I turn a patient over to a collection agency for non-payment of bills?

Each office practice should have a written policy regarding billing and collection procedures, and patients should be informed of the office’s billing practices prior to the initiation of treatment. For example:

What insurance plans do you accept?
What is the patient’s responsibility regarding co-pays, out of pocket expenses, etc.?
Do you take credit cards?
When is payment expected?

Hold communications with patients regarding billing matters in a private location. Make sure the person(s) handling billing issues in your office is courteous and has the ability to help patients understand their bills. Try to determine the reason for non-payment. Is the patient unhappy with the treatment provided? If so, see “Should I write off a patient’s bill?” above. Is the patient having financial difficulties? If so, try to work out a payment schedule. Prior to turning over a patient to a collection agency, send the patient 30, 60 and 90 day billing notices. Recognize any patient attempts to make payments.

DO NOT allow your staff to turn over a patient to a collection agency until you have had a chance to review the patient’s records and weigh the risk of malpractice litigation against the need to collect. OUM may be consulted for guidance.

If you choose to utilize a collection agency, make sure the staff is courteous, tactful and professional since the collection agency could be viewed by the patient as a part of your office. You should approve any forms and/or letters used by the agency, and you should give written approval before the collections agency files a lawsuit against a current or former patient. Collection procedures should treat all patients consistently. Collection efforts should NOT be recorded in the patient’s record.

I plan to discontinue taking certain types of insurance (e.g., Medicaid) or discontinue participation in a PPO/HMO. What do I tell the patients who will be affected by my decision?

First, you need to review any contracts you have with the insurance company or organization. You will be bound to the terms of the contract. If there is no contract, or if the contract is silent on the subject of patient notification, then you should notify the patients who will be affected by your decision as soon as possible in order to give them time to find another doctor and to avoid or defend against allegations of patient abandonment. It is recommended that you notify those patients via certified mail. The letter should include the following:

You will no longer be accepting their insurance plan after a certain date (at least 30 days from the date of the letter)
The forms of payment you will accept
The patient has the choice of continuing treatment with you if using an acceptable payment source (e.g., cash or another form of insurance) or choosing another doctor that will accept his/her insurance
You will be glad to send a copy of the patient’s records to his/her new provider upon receipt of the patient’s written request

My patient is no longer insured. Am I required to continue seeing them?

You have a responsibility to continue seeing the patient as long as a doctor-patient relationship exists. Once you are aware a patient is no longer covered by insurance, ask your staff to review your office financial policy with the patient, which should include the forms of payment you will accept. If the patient cannot abide by your financial policy, then you may choose to formally terminate your relationship with the patient.

However, exercise caution if an existing patient who no longer has insurance has a condition that warrants ongoing care and treatment. Patients who have serious conditions may “fall through the cracks” if no other provider will accept them as a patient. You might consider offering an extended payment schedule or making other payment arrangements until the patient is stabilized or over the critical period.

What should I report to OUM?

According to your policy, all claims must be reported to OUM as soon as practical. If you fail to do so, you could void your professional liability insurance coverage. A claim includes a demand for money, services or a waiver of an outstanding balance. Examples of claims are:

Notification or service of a summons and complaint (also known as a lawsuit).
A written or verbal request from a patient or his attorney for waiver of an outstanding balance.
A written or verbal request from a patient or his attorney seeking reimbursement of payments made.
A written or verbal request from a patient or his attorney for payment of money.
A written or verbal request from a patient or his attorney that you pay for medical expenses incurred subsequent to your care.
A written or verbal request from a patient or his attorney that you provide free medical services in the future.
A Notice of Intent to sue or letter specifically stating a claim is being made written by the patient or the patient’s attorney.

OUM also encourages the reporting of incidents that you believe may develop into claims in the future. An incident
may include:

A threat of a lawsuit by a patient or family member.
A request for records by a patient or a patient’s authorized representative (e.g., an attorney), if the policyholder believes the request is related to the quality of care issues or a potential professional liability claim.
Verbal or written allegations of misconduct such as sexual harassment, discrimination, etc.
Verbal or written allegations of invasion of privacy/breach of confidentiality.
Serious unexpected outcomes or deaths.
Patient injury as a result of care, especially catastrophic injury, serious burns or any injury resulting in partial or permanent disability.
Errors in the policyholder’s judgment or treatment.
Falls or similar incidents on or near the doctor’s premises resulting in injury.
Injuries related to equipment or supplies.
Any serious adverse event for which opinions or advice regarding liability exposure and management are needed.
Governmental investigations.

If in doubt, contact the OUM Claims Department for guidance. Once notified, an OUM Claims Department representative will advise you if additional action needs to be taken and if additional information and/or documents will be needed.

May I try to settle a claim on my own without reporting it to OUM?

According to your professional liability insurance policy, you must, as soon as practical, give to OUM written notice of any claim made against you and, in the event of a lawsuit, you must immediately forward to OUM every demand, notice, summons or other process received. If you try to settle a claim without involving OUM, your actions could void your professional liability insurance coverage. Therefore, consult with OUM before attempting any settlement on your own.

Should I ask my patients to sign a mandatory arbitration/mediation agreement form?

OUM does not encourage the use of such forms. Mandatory arbitration contracts mean that in the event of a malpractice claim the patient and the doctor agree to a hearing where a neutral third party will listen to both sides and give a binding opinion or judgment. While this may at first seem like a good idea, there are concerns with this process.

First, there are many claims of chiropractic malpractice that are without merit. If defensible claims are taken to arbitration, the ability to defend the case is limited. Also, the use of these forms may breach your insurance contract with OUM. OUM encourages policyholders to immediately notify the claims department of any claim or lawsuit. A claims specialist will evaluate the claim, provide guidance as necessary and appoint a defense attorney if needed. OUM also encourages policyholders to notify the Claims Department of any circumstance you feel could result in a claim or lawsuit against you. Once notified, an OUM Claims Department representative will evaluate the situation and advise you regarding potential actions that can be taken to possibly avert formal legal action by your patient.

What do I tell a patient who has suffered an unexpected outcome?

Patients may suffer unexpected outcomes, such as a fall in the exam room, delayed healing, a misdiagnosis, etc., that may or may not be the result of malpractice. Regardless, doctors are at risk for being named in a lawsuit if steps are not taken to mitigate the risk. Such steps include clear and honest communication with the patient and/or the patient’s family regarding the facts surrounding the unexpected outcome and showing compassion and concern for the patient.

A primary factor in a patient’s decision to pursue a malpractice case often is lack of communication from the doctor regarding an unexpected outcome or undesirable result. Patients want answers to their questions. They want honest information about what happened, why it happened, how consequences will be mitigated and, in the case of a medical error, what is being done to prevent reoccurrence.

A little compassion goes a long way in reducing the likelihood that a patient will sue. In many instances, prompt acknowledgement of the unexpected outcome or the patient’s dissatisfaction and an empathetic statement such as, “I’m sorry this happened to you” will be all a patient needs to hear. But, isn’t saying “I’m sorry” an admission of liability? Not necessarily. An admission of liability occurs when a statement about the acceptance of culpability or negligence is made. For example, “It is my fault that this happened
to you.”

Empathetic statements should not be about admitting fault or liability, but rather about connecting with the patient and expressing regret for the patient’s discomfort and/or predicament. Words that admit to negligence or malpractice should be avoided, unless it is a known fact that an error occurred. Instead, the patient should be provided with an objective, factual description of the event (without accepting or placing blame), a sincere acknowledgment of regret for the unfortunate nature of the event and a plan for continued care and treatment.

You are encouraged to become familiar with your state’s law regarding apologies or benevolent gestures as the provisions vary from state to state. It is also important to become familiar with the disclosure policies and procedures at all hospitals where you have privileges.

While there are no guarantees, honestly acknowledging and addressing an unanticipated outcome and offering benevolent statements and gestures can help minimize patient anger and open lines of communication. This, in turn, may prevent the filing of a lawsuit.

You may consult OUM’s Risk Management or Claims Departments for guidance prior to offering benevolent statements or gestures.

My patient is (or I am) unhappy with the care they received from their previous doctor. What do I tell the patient?

Avoid collegial criticism. Many patients make the decision to sue a doctor based on the comments of another doctor, usually a subsequent treating doctor. When patients ask about the care they previously received, or when you question the treatment that was rendered to a patient, consider that many times you only have the patient’s side of the story and partial, if any, prior patient records. Therefore, you can only speculate on the other doctor’s rationale for treatment or the circumstances surrounding the care and treatment of the patient.

It is best to encourage the patient who has a question regarding another doctor to talk with that doctor directly. If you have questions regarding the care provided by another practitioner, call the doctor to discuss the care and clarify the issues, if possible, or obtain copies of all pertinent patient records.

When talking to a patient who is questioning care by another doctor, or when you question the care by another doctor, it is best to document the facts and avoid commenting on the other doctor’s care. Facts include physical examination findings, the patient’s current condition/diagnosis and the plan for continued care, etc. Criticizing another doctor’s care can also open you up to increased liability.

Criticizing another doctor’s judgment may imply that you can do a better job. If the outcome of your treatment is less than optimal, the patient may sue you as well as the prior doctor! Likewise, if the patient sues the previous treater, that doctor may decide to bring you into the case and attempt to blame you for the ultimate outcome.

Am I required to provide an interpreter for hearing impaired patients?

Title III of the Americans with Disabilities Act (ADA) requires that places of public accommodation, including doctor’s offices, eliminate any kind of discrimination against individuals with a disability. Individuals with a disability include those with hearing impairments.

The Department of Justice (DOJ) promulgated regulations to implement Title III of the ADA. These regulations state, “A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” (28 CFR 36.303) The term, “auxiliary aids” is defined to include qualified interpreters, note takers, computer-aided transcription services and written materials among others. The cost of providing auxiliary aids cannot be passed along to the patient.

The DOJ’s flexibility regarding nondiscrimination requirements means that the precise requirements are not clear, especially when it comes to what is meant by an “undue burden.” The regulations state that several factors should be considered in determining whether or not a particular action (e.g., the provision of interpreters) is an undue burden:

The facility’s operating income and eligibility for tax credits.
The availability of sources of outside funding or of a parent company.
The frequency of visits that would require the services of an interpreter.

However, the single factor of the cost of an interpreter exceeding the cost of an office visit generally has not been found by the courts to be an undue burden.

The ADA does not mandate the use of interpreters in every instance. The doctor can choose an alternative to interpreters as long as the result is effective communication. The doctor and patient should work together to mutually agree upon the type of auxiliary aid to be employed to achieve effective communication. However, there are some instances when the use of a qualified interpreter is warranted, such as:

Obtaining medical history
Explaining procedures or treatment options
Obtaining informed consent
Patient education and instructions

Am I required to provide interpreters for patients who do not speak or understand English?

Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color or national origin in any program or activity that receives federal financial assistance (such as Medicare or Medicaid). The act requires that recipients, including healthcare providers, take reasonable steps to ensure meaningful access to their services, including access by people with limited English proficiency.

The Office of Civil Rights (OCR) defines limited English proficient (LEP) individuals as “individuals who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English.” In order to facilitate federal financial assistance recipients in complying with the law, the OCR published a policy guidance document, “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” on August 4, 2003.

According to the OCR document, “Questions and Answers Regarding the Department of Health and Human Services Guidance to Federal Financial Assistance Recipients Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons,” small practitioners and providers will have considerable flexibility in determining how to fulfill their obligations to “take reasonable steps to ensure meaningful access” for persons with LEP. This document states that the OCR will assess compliance on a case-by-case basis and will take into account the following factors:

The number or proportion of LEP persons eligible to be served or likely to be encountered,
The frequency with which LEP individuals come in contact with the service,
The nature and importance of the service provided by the recipient and
The resources available to the recipient and costs.

The document goes on to state that smaller recipients with smaller budgets will not be expected to provide the same level of language services as larger recipients with larger budgets.

If, upon application of the four factors mentioned above, the provider determines he/she is required to provide an interpreter, the provider should make the LEP person aware that he/she has the option of having the recipient provide an interpreter for him/her without charge, or of using his/her own interpreter. The LEP person may choose to have a family member or friend interpret. However, providers may not require a LEP person to use a family member or friend as an interpreter. It is important for the doctor to consider special circumstances that may affect whether a family member or friend should serve as an interpreter, such as emergency situations and concerns over competency, confidentiality, privacy or conflict of interest (such as cases of abuse).

What are some of the risks associated with using social media to communicate with my patients?

A major concern of social media is the constraints placed on healthcare providers by the Health Insurance Portability and Accountability Act (HIPAA). The security of patient information must always be considered in social media interactions to protect the privacy and confidentiality of protected health information. Social media networks are generally not HIPAA compliant. Therefore, individually identifiable information about a patient should not be posted on a social network site. Even if no name is explicitly stated, any information which might identify the patient (i.e., a description of a unique physical characteristic) should be avoided. Additionally, patients should not be contacted via social media regarding anything that could be considered confidential.

Office staff should be made aware of the potential for violation of patient privacy. To protect against unwitting or intentional breaches of privacy, you should institute written communication policies that clearly forbid online disclosure and discussion of patient health information. Require staff to sign confidentiality agreements and acknowledge annually that they have read and understand the policies and agreements.

Appropriate boundaries of the patient-doctor relationship should be maintained when interacting with patients online. A professional demeanor should always be maintained. Maintain separate personal and professional identities when using social media. You can create a separate account for your professional practice and allow patients to “like” or “follow” you. You can then provide your patients with information about your practice, educational information, etc.

To aid in maintaining appropriate boundaries with patients, do not become “friends” with your patients. If you receive a “friend” request from a current or former patient, politely refuse and explain to the patient that it would be inappropriate.

Use privacy settings to safeguard personal information and content to the extent possible. However, realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently and could be discoverable. Refrain from unprofessional posting or comments which contain profanity, sexually explicit material or discriminatory remarks. Be aware that your actions online and the content you post can negatively affect your reputation among patients and colleagues. Additionally, in the event you are named in a lawsuit, inappropriate or questionable social media practices could cause your character and credibility to be questioned.

It is also important to avoid the appearance of providing chiropractic advice to someone with whom you do not have an established relationship. Doing so could open you to professional malpractice liability and the risk of practicing chiropractic in jurisdictions where you are not licensed. Disclaimers should be used to state clearly that you are not giving chiropractic advice and that readers should consult their own practitioners for treatment options or call your office for an appointment.

May I leave diagnostic test results on a patient’s voicemail?

No. The best practice is to leave a call back number with the patient. It is acceptable to leave messages on a patient’s phone voicemail; however, care should be taken to limit the amount of information disclosed in order to reasonably safeguard the patient’s privacy. Additionally, you cannot be sure the patient receives the test result if you leave a message. It is best to deliver test results directly to the patient. Be sure the conversation with the patient is documented in the patient’s record, including the date and time of the call, the exact information given, and who relayed the information.

Do patients have the right to request restrictions to the use or disclosure of their health information?

Under the initial HIPAA privacy rule, the patient had the right to request restrictions to the use or disclosure of his/her private health information (PHI), but the provider did not have to agree to the restrictions. However, the new Health Information Technology for Economic and Clinical Health Act (HITECH) increases the patient’s right to request restrictions on disclosure of the patient’s PHI. Now, providers must agree to patients’ requests to restrict disclosure of PHI to an insurance company if the patient paid cash for the service.

Do patients have the right to request an amendment to their medical records?

Patients have the right to request that their protected health information be amended by their healthcare provider to correct incomplete or incorrect information upon submission of a written request. (See HIPAA Privacy Rule – Standard 164.526). However, the office may deny a patient’s request for amendment if the office determines that the protected information subject to the request:

Was not created by the office, unless the individual provides a reasonable basis to believe that the originator of the protected health information is no longer available to act on the requested information.
Would not be available to the patient for inspection (see HIPAA Privacy Rule 164.524 for exceptions to a patient’s right to access protected health information).
Is accurate and complete.

Should a provider deny a patient’s request to amend his/her protected health information, the provider must provide the patient with a written explanation of the denial. The patient will have the right to file a statement of disagreement or to request that the office include the individual’s request for amendment and the denial with any future disclosures of the protected health information subject to the request.

The state is investigating a child abuse case and has requested a copy of the child’s patient records. May I release a copy of the records to the investigator?

The answer depends on how the request for records is made. If the doctor is presented with a court order or a search warrant signed by a judge, the doctor may provide copies of the child’s records without a release signed by the parent(s). Absent a court order or search warrant, the issue is more complicated. If a doctor sees evidence of child abuse, he or she has a duty to report this to authorities under most states’ law and no release is required. If evidence of abuse is not apparent during a visit, or from the patient record itself, and a law enforcement officer simply makes a verbal or written request to see the chart, the doctor is not required to provide copies of the record. The doctor may do so under certain limited circumstances, however, primarily when the alleged victim of the crime
is incapacitated.

My patient’s prior doctor wants my patient’s test results. Am I allowed to provide him with the results without my patient’s permission?

The HIPAA Privacy Rule (45 CFR 164.506) allows healthcare providers to share protected health information for treatment purposes without the patient’s authorization. However, if a prior healthcare provider is no longer involved in the care and treatment, you should not disclose a patient’s information without the express written consent of the patient.

One of my patients hit another patient’s car in the parking lot and left the scene. The investigating police officer wants the driver’s name and phone number. May I provide the officer with the patient’s name and phone number?

A healthcare provider may disclose certain, limited (minimally necessary) protected health information, such as the patient’s name and phone number, in response to a law enforcement official’s request for such information for the purpose of identifying or locating a suspect. [45 CFR 164.512(f)(2)]

The hard drive containing patient information was stolen from one of my computers. What should I do?

The HIPAA Security Rule requires practices to notify a patient in the event that unsecured protected health information is disclosed to an unauthorized person. Unsecured protected health information means health information that is not protected by technology that renders it unusable or unreadable to unauthorized persons.

The patient must be notified in writing by first class mail as soon as possible, but no later than 60 days after discovery of the unauthorized disclosure by the practice. If the practice does not have current mailing information, notice may be given by telephone or email. The notification must include, to the extent possible, the following:

A brief description of what happened, including the date of the unauthorized disclosure and the date of its discovery.
A description of the type of health information involved in the disclosure (e.g., name, Social Security number, date of birth, diagnoses, etc.).
The steps the patient should take to protect himself/herself from potential harm resulting from the disclosure.
A brief description of what the practice is doing to investigate the disclosure, mitigate its impact and to protect against future unauthorized disclosures.
Contact information for the patient to ask questions (a toll-free telephone number, email address, website or postal address).

If the practice does not have current contact information on 10 or more patients affected by the unauthorized disclosure, the practice must give notice by posting on the practice’s website for at least 90 days, or by placing a notice in a major print or broadcast media in the geographic area where the patients most likely reside.

If the breach affects 500 or more patients affected by the unauthorized disclosure, the practice must give notification through major media outlets serving the city or town in which the practice is located. In addition, notification must be given to the Department of Health and Human Services (DHHS) of the breach. If the unauthorized disclosure involved less than 500 patients, the practice must maintain a log of the incident and submit the log to the federal DHHS at the end of the calendar year. If the disclosure involves more than 500 patients, the practice must notify DHHS immediately.

When do I need to obtain informed consent?

Informed consent discussions need to be held with patients (and documented) for any treatment or procedure that has the potential for significant risk. This results in the patient’s educated decision either to pursue or refuse certain treatments or procedures. It lets the patient know that complications can and do occur even in the absence of negligence, and that all treatments involve some element of risk. While persons other than the doctor may perform administrative tasks, such as obtaining the patient’s signature on a form, handing out an educational pamphlet or showing a video, it is the doctor’s responsibility to complete the actual consent process.

What needs to be included in informed consent discussions with patients?

Where possible, it is desirable for the informed consent discussion to occur a sufficient period of time before the proposed treatment or procedure in order to allow the patient time to consider the information and ask questions. This also avoids any issue of pressure or duress. During the discussion, you should use language the patient can understand and avoid the use of chiropractic jargon.

The following information should be discussed with the patient and documented in the patient record:

The nature of the patient’s illness, the diagnosis, the proposed treatment plan and the prognosis.
A description of the recommended procedure or treatment and its purpose.
The probable outcome, particularly if it is difficult to predict, and the patient’s expected post-procedure/treatment course.
The most likely risks and side effects and the potential benefits, as well as the potential complications of the procedure or treatment.
Reasonable alternative methods of treatment or non-treatment including the risks, benefits, complications and the prognosis associated with each alternative or with non-treatment.

How much information is adequate in an informed consent discussion?

Most states apply the “reasonable patient standard.” It focuses on what a patient would need to know in order to understand the decision he or she is being asked to make. A few states, Virginia for example, apply a “reasonable doctor standard.” This requires disclosure of the information a typical doctor would give about the treatment or procedure at issue.

The best approach to the question of how much information is enough is one that meets both your professional obligation to provide the best care and respects the patient as a person with the right to a voice in healthcare decisions. A doctor need not disclose all of the risks or complications which may occur, but should discuss those risks most commonly associated with the procedure or treatment and which have a reasonable chance of occurring, as well as those risks which have a small chance of occurring but which have grave consequences.

Who can give consent?

Informed consent requires that a patient possess the requisite mental capacity to understand and weigh the positive and negative features of a proposed treatment and be able to voluntarily give or withhold consent after making an informed decision. If the issue of the patient’s capacity to consent is unclear, a psychiatric or other consultation may be helpful. If the patient is determined not to have the capacity to make decisions, someone else must be authorized to make medical decisions and give consent for the patient. It may be someone holding a durable Power of Attorney for Healthcare, a court appointed guardian or other person authorized under state or other applicable law to act on behalf of the patient in making healthcare decisions, such as the next of kin.

In most situations, parents can give informed consent for treatment of their minor children. However, some states allow minors to play a more active role in their healthcare and treatment, including informed consent. Many states have specific laws that allow minors to consent, without parental knowledge or approval, to healthcare treatments related to substance abuse, mental health and sexual activity. Likewise, many states make various exceptions for “mature minors” and “emancipated minors.”

It is important to be familiar with your individual state laws regarding appropriate informed consent procedures for incompetent individuals or minors.

How long are signed consent forms valid?

There is no set period of time a signed consent form is valid. A period of 30 to 60 days is commonly used by healthcare organizations. Several factors should be considered when developing your office policy and procedure regarding consent forms.

Informed consent is a process of communication with the patient so that the patient is given enough information to make an informed decision to have or not to have a particular treatment or procedure. When a patient signs a consent form, he or she is attesting to the fact that the informed consent process took place. Some doctors utilize the consent form as a guide for the informed consent discussion and ask the patient to sign the form at the end of the discussion. Other doctors have the informed consent discussion with the patient and ask the patient to sign the consent form at a later time. Either way, for elective procedures, the informed consent discussion should take place a sufficient amount of time prior to the planned treatment or procedure in order to give the patient time to think about the informed consent discussion, to ask questions and make an informed decision. Therefore, you would not want to restrict the period of time the form is considered valid to a short period of time such as one or two weeks.

However, you do not want too much time to pass after a patient signs a consent form. The patient’s condition may change, altering the planned procedure and/or the risks and benefits. If any element of informed consent (diagnosis, procedure, risks, benefits, etc.) changes after the patient signs a consent form, another informed consent discussion should take place and another form should be signed.

Also, if too much time passes, the patient may forget certain elements of the informed consent discussion. In this situation, it is prudent to review the informed consent discussion with the patient and have the patient resign and date the consent form if nothing has changed, or sign a new consent form, if needed.

What do I need to do if a patient refuses a recommended treatment or procedure?

Patients have the right to refuse treatment. If a patient refuses a recommended plan of treatment, it is important that you undergo and document an “informed refusal” discussion with the patient. This process is basically the same as for informed consent discussions.

The patient’s refusal may be due to a lack of understanding of the recommended treatment or the patient’s inability to comply with the plan of treatment for one reason or another. Therefore, patient education is crucial. Provide the patient with specific, detailed information regarding the recommended treatment including the benefits and risks of the treatment and any risks connected with the failure to undergo the treatment. Additionally, discuss with the patient any alternative treatment possibilities and the risks and benefits of each. All discussions and educational efforts should be documented in the patient’s patient record along with the fact that the patient was made aware and understands the risks of non-adherence with the recommended plan of treatment.

Documenting refusal of care is particularly important where the patient refuses care because of monetary considerations such as lack of Medicare coverage. It is crucial in those instances that the provider document that the patient took into consideration factors independent of his or her bank account by additionally weighing the medical risks at issue.

Ultimately, the decision whether to undergo a certain treatment remains at all times with the patient, regardless of the patient’s reasons for refusal. If the patient exhibits knowledge of the proposed procedure and the risks of refusal and still refuses, it is recommended that the practitioner ask the patient to sign a “refusal of treatment” form. In order to further reduce the practitioner’s liability in the event the patient suffers a poor outcome as a result of the non-compliance, the practitioner may consider terminating his/her relationship with the patient.

What documentation should be included in a patient’s medical record?

Good documentation in the patient’s record can be a primary defense against allegations of malpractice. A well-documented patient record may actually prevent a lawsuit from being filed. On the other hand, poor documentation or alterations in the patient record can render an otherwise defensible case indefensible. Patient record documentation should accurately reflect the care and treatment provided to a patient and that the standard of care was rendered. Good documentation is also crucial in the coordination and communication of patient care with other healthcare providers and to justify billing. Documentation should be legible, accurate, clinically relevant, chronological, objective, clear, complete and specific. The advent of EHR-based patient record documentation comes with many advantages, but also many hazards, as discussed in the following sections.

What are some of the risks associated with the use of templates?

A common mistake is not editing a template so that it is patient-specific, which results in documentation of information that is erroneous or doesn’t apply to the patient. For example, when using a template for the initial history and physical, the template states the patient has a normal gait, but in reality, the patient has an antalgic gait due to pain.

Another common problem is carrying forward the initial history and physical to subsequent visit notes when another history and physical was not performed. By including the history and physical, you imply that you performed a history and physical on that visit. Instead document any changes to the initial H&P or that the H&P is unchanged. The progress note should only include documentation of the service(s) that you provided on that visit.

Some pre-fabricated templates contain a large amount of extraneous information that does not apply to the reason for the patient’s visit or plan of treatment. For example, documentation that the patient is “well-developed, well-nourished and with good attention to hygiene and body habitus” and “oriented to person, place and time” in every progress note when there is no history that the patient ever had a problem with hygiene or cognition is ill advised. Documentation containing a large volume of information that does not relate to the specific patient or the patient’s complaints is difficult to read and may prove less effective that a simple record which is clinically relevant and accurately describes the patient’s condition.

Also, review your notes for inconsistencies prior to locking them in. For example, if the template notes state the patient does not have a fracture, but the diagnosis is documented as “fracture”, does the patient have a fracture or not? This could have implications for the patient’s care and treatment and could also have a major impact on the ability to defend your actions in a malpractice action.

In addition, improper or careless use of templates may lead to allegations of fraud and abuse in Medicare, Medicaid, and private insurance audits and investigations. Great care should be used in “carrying forward” findings and narrative from prior visits: efforts should always be made to customize the documentation of each patient encounter.

When I enter my patient’s current medications, many times my EHR system will alert me to a potential drug-drug or drug-allergy interaction for medications prescribed by another doctor. How should I address this in my documentation?

It is important to document that you acknowledged the alert and took appropriate action. At the same time, the process should not be unnecessarily burdensome for you or for the prescribing doctor.

You should discuss with the patient that a potential drug-drug or drug-allergy interaction was noted by your EMR software and advise the patient to speak to the prescribing doctor regarding the potential interaction. This conversation should then be documented in your progress note. One option is to create a template for this purpose. For example, “Upon updating the patient’s medication list in the EMR, an alert was displayed on a potential [drug-drug, drug-allergy] interaction. The alert indicated that the nature of the interaction is [nature of interaction]. This medication was prescribed to the patient by another doctor. The patient was notified of the nature of the potential interaction and advised to contact the doctor who prescribed the medication(s) to discuss the potential interaction.”

If the alert is classified as moderate or severe, you could also send the prescribing doctor a letter such as, “Upon updating [patient’s name] current medications list, the patient provided us with the following medications: [list medications]. Our EMR software alerted us to the following potential drug interactions: [list potential interactions]. As part of our medication reconciliation and doctor communication process, we are sharing this information with you. If you have EMR software installed in your practice and have the capability to accept Continuity of Care Document (CCD) files*, please let us know so that we may efficiently communicate with your office electronically in the future.”

*CCD is an electronic document exchange standard for sharing patient summary information.

How do I correct an error in or add information to a patient’s patient record?

There are valid instances when correction of an erroneous entry, late entries of necessary clinical information, addendums to prior entries or amendments to the patient record need to occur. In these instances, appropriate steps should be taken to clearly document who made the entry, when the entry was made and why the entry was made.

Changes to the patient record should not be made after the record has been copied and released, such as to an attorney. Any changes to a record after a copy has been released results in two versions of the record. In the event of a lawsuit, suspicions of record alteration will be raised. Any hint of record tampering may completely shatter the credibility of the record and of the defendant and may lead to a plaintiff’s verdict, regardless of the medical facts or merit of the case.

Never alter a patient record. If it is determined that patient records have been changed without justification, the credibility of the entire record may be destroyed. Not only will record alteration severely damage the chances of prevailing in a lawsuit, but it may put professional liability coverage for the incident at risk.

What should be documented in the patient’s record in the event of an unexpected outcome?

As soon as possible after discovering an unexpected outcome, document the event in the patient’s record. Documentation of unexpected outcomes should be factual. The documentation should not contain subjective comments, blame or speculation about what happened.

After you have disclosed the facts to the patient and/or family, document the information discussed; the date, time and place of the discussion; the names of those present; and your plans for subsequent treatment.

If I leave or am asked to leave a group practice, to whom do my patients and their medical records belong?

If there is no employment agreement or other contractual arrangement between the departing chiropractor and the practice stating otherwise, generally the patient and the patient’s record are the “property” of the practice and the practice is responsible for continued patient care. The departing chiropractor should not physically remove the patient chart and any other property belonging to the practice at the time of his/her departure.

May I tell my patients that I am leaving the group practice and will be practicing at another location?

In general, if there is no employment agreement or other contractual arrangement between the departing chiropractor and the practice stating otherwise, the departing chiropractor may give patients notice that they are leaving the practice and will be opening up a new practice at another location. However, some states may consider this a violation of your duty as an employee and, therefore, you should consult with legal counsel before advising patients of your impending departure from the practice. If a patient wants to continue treatment with the departing chiropractor, the departing chiropractor may provide the patient with a patient records release form by which the patient may instruct the practice to release a copy of their patient records to the departing chiropractor. The release form should comply with the HIPAA Privacy Rules. The departing chiropractor’s written notice to the patient should not give details as to the reasons for the chiropractor’s departure; doing so is unnecessary and could prompt a lawsuit by the practice. Further, the letter should be neutral in tone, simply advising the patient that they have the right to either continue treatment with the practice or to have a copy of their records sent to the departing chiropractor. Once the patient makes a choice, both the practice and the departing chiropractor must honor that choice.

If I leave or am asked to leave a group practice, what is my malpractice liability if my patients need urgent, ongoing treatment for a serious condition?

The responsibility for the patient remains with the group practice until such time the patient has made a decision to move their treatment to the departing chiropractor or another doctor. If the patient chooses to stay with the practice, the malpractice liability for acts committed thereafter also remains with the practice; if the patient chooses to go with the departing chiropractor, that chiropractor will then be able to continue the care and will assume responsibility for any malpractice liability. In all instances, the departing chiropractor and the practice should act professionally to transition the patient’s care in order to avoid compromising the patient’s health.

I have an employment agreement with the group practice which includes a noncompetition clause and/or a non-solicitation clause. Can I still notify my patients of my departure?

If the employment agreement contains a non-competition provision, the departing chiropractor will not be able to practice or see patients within the geographic area prescribed in the non-competition provision. This may eliminate the ability of the departing chiropractor to see the patient, regardless of whether the patient wishes to do so or not.

However, if the geographic area is only a few miles away from the group practice (e.g., 15 miles) and the chiropractor decides to open a practice just outside the geographic area (e.g., 20 miles), the patient may desire to continue treatment with the departing chiropractor. If there is a non-solicitation clause, the departing chiropractor must use extreme caution. It is correct that the patient has the choice of changing care from the practice to the departing chiropractor. The departing chiropractor, however, must not take any action that could be construed as “soliciting” the patient to join them at the new practice. The fact that the patient begins treatment at the chiropractor’s new office will be viewed by the old practice as evidence of solicitation, regardless of whether there was any actual solicitation or not. Accordingly, the safest thing would be for the new office to decline to see any of the patients from the old practice. If the departing chiropractor does want to continue seeing some of the patients from the old practice, the patients must be advised that the choice is theirs but the chiropractor is in no way encouraging them to leave the old practice. It is advisable to have the transferring patients sign a form acknowledging that they were not solicited in any way and elected to transfer care on their own volition. Whether the departing chiropractor should send out a formal announcement of the opening of a new office to patients of the old practice is a concern. Legal counsel should be consulted to determine whether this constitutes “solicitation” under state law.

Should I have emergency equipment and medications in my office?

The type of emergency equipment and medications needed in an office of chiropractic is dependent upon many factors, including the level of service provided, the skills of the chiropractor and his/her staff and the distance to the nearest emergency department.

While rare, medical emergencies do happen in the office setting. Patients, visitors or staff could suffer from an unexpected medical emergency. Therefore, all offices should have a plan to deal with this type of situation. The plan could be as simple as having the receptionist dial 9-1-1 and a staff member certified in basic life support perform CPR, if necessary, until emergency medical services (EMS) personnel arrive.

The more sophisticated the plan and equipment, the more responsibility a chiropractor has. No office should stock emergency equipment and/or medications that cannot be used safely by office staff. Ideally, all office employees should be trained and maintain certification in basic life support, regardless of their office responsibilities.

Emergency supplies and medication should be locked and kept in a secure location. Make sure that staff members know where emergency supplies and medication are kept and that appropriate staff have the ability to unlock and retrieve them timely in an emergency situation. Emergency equipment, supplies and medications should be checked regularly and documentation of the checks should be maintained. If the office maintains a defibrillator, it should be checked daily.

How long should I keep patient records?

It is important for each practice to establish, and consistently implement, patient record retention policies and procedures.

Patient record retention policies and procedures should include guidelines that specify what information should be kept, the time period for which it should be kept and the storage medium (paper, microfilm, etc.). Applicable federal health record retention requirements, state laws or regulations pertaining to retention of health information, and accreditation agency retention standards, if applicable, should be followed. It is recommended that a local attorney, familiar with such matters, be consulted when developing patient record retention policies.

Unless longer periods of time are required by state or federal law, records of adult patients should be retained for a minimum of 10 years after the most recent encounter and records of minor patients should be retained to the age of majority plus the state statute of limitations or 10 years after the most recent encounter, whichever is longest.

May I release original patient records/films?

Original patient records, including radiological films, should not be removed from the office premises except as required by court order, valid subpoena* or statute. Copies of records may be released as necessary for treatment, payment and healthcare operations (as defined by HIPAA), or upon receipt of a written authorization of the patient or the patient’s representative.

*A subpoena usually requires the doctor to make arrangements to appear with the records or provide identical copies of the records to attorneys for each side in the matter. Should a subpoena require the doctor to send original patient records to an attorney; the doctor should promptly consult an OUM claims specialist.

May I charge for copying patient records and X-rays?

Federal and state laws address fees that doctors may charge patients and others for copying patient records. HIPAA’s privacy rule addresses fees in section 164.524(c) (4) which allows a provider to charge a reasonable, cost based fee for copying and postage. It also allows providers to charge for preparing an explanation or summary of the record, if the patient agrees in advance to a summary or explanation and to the fees imposed, if any.

It should be noted that an August 14, 2002 Federal Register update clarified the final privacy rule to say that Section 164.524(c)(4) (referenced above) limits only the fees that may be charged to individuals or to their personal representatives. The fee limitations do not apply to any other permissible disclosures, such as requests by attorneys with a valid patient authorization.

State regulations provide the most specific guidance regarding fees for patient record requests other than from patients. Most states have specific laws and regulations that should be used in establishing your copy cost fees. Additionally, many states have government websites that post laws related to healthcare. Should you decide to charge a fee for copy costs, you are strongly encouraged to consult a local attorney familiar with such laws prior to implementing your office copy cost fee schedule. Once your fee schedule has been developed, it should be reviewed and updated on an annual basis.

I have received a request for copies of a patient’s X-ray films. I have always used the hospital’s X-ray copier, but the hospital has gone digital and no longer has the copier. What can I do?

You still have to retain the original X-rays and provide the requestor (with the patient’s written authorization, if not the patient) a copy. If you do not have access to a copier at the local hospital or another doctor’s office, you can utilize an X-ray copy service to make the copies. Be sure to obtain a HIPAA Business Associate Agreement with the copy service provider. If the request is made by an attorney, you could ask the attorney to send over their copy service to make the copies.

Must I keep the hard copy original of patient records after they have been scanned into PDF or entered into the Electronic Health Record (EHR)?

With the increasing use of EHR, the answer to this question is important for all healthcare providers to know. Unfortunately, however, the answer is complicated and may depend on the following:

The provider’s medical malpractice insurance policy.
Federal privacy and security laws.
State law relating to patient records.

Some insurance carriers have policy requirements covering record retention in the context of EHR conversion. Should the provider’s insurer have such a requirement, it should be incorporated into the provider’s record retention policy. OUM’s malpractice policy does not contain a requirement to keep hard copy originals of patient records.

The Health Insurance Portability and Accountability Act (HIPAA) provides that patient health information be maintained in a manner that is private and secure, yet accessible. A properly maintained EHR will meet these standards if providers comply with HIPAA requirements. HIPAA compliance is beyond the scope of this article, but providers should have written policies and procedures, do staff training and appoint privacy and security officers. In sum, if a provider complies with all HIPAA rules, federal law will not require that the original hard copy be retained.

The Medicare program does not require patient records to be maintained in an original hard copy format. It does require that the patient record “be in its original form or in a legally reproducible form, which may be electronic, so that patient records may be reviewed or audited by authorized entities.” Providers must have a system in place to ensure that the records may be promptly accessed and retrieved. Many states have not specifically enacted legislation or administrative rules regarding whether, when or how hard copies of patient records that have been scanned or entered into the EHR may be destroyed. Provided that an electronically stored record can be printed at the patient’s request, and a quality assurance process and/or procedure exists to ensure that the electronic copy of the original document is identical to the paper copy, most state laws do not require a healthcare provider to retain the original copy. It is anticipated that many legislatures and regulatory agencies will be amending the laws and regulations due to developments in EHR requirements.

Healthcare providers should have a written policy requiring that the image maintained on electronic media is identical to its paper source – including all writing and text in margins, footnotes, etc. In some scanned documents, text may run to the edge of a page, or there may be marginalia, and it is critical to ensure that that wording does not get cut off or become illegible after the document is scanned. The image retained as part of the EHR or scanned and saved in the electronic patient file must be identical to the original paper version. Staff should be trained to do routine quality control of electronic images to ensure complete and accurate digitizing of records.

Destruction of original records should conform to an established, written office policy. Destruction of hard copy originals should not occur if litigation is threatened by a patient. If a medical care provider were to destroy records in such a situation, the provider could be found to have “spoliated” evidence. A finding of spoliation can have serious negative consequences in a lawsuit involving a healthcare provider.

The main concern with keeping electronic health records in lieu of paper copies is that the authenticity of the electronic record may be questioned, particularly in legal proceedings. This concern appears to be unfounded as case law in most states indicates that a photocopy is admissible where an original document cannot be produced, as long as there is no real dispute as to its being an accurate reproduction of the original.

My computer crashed and I lost all my patient’s electronic patient records. What should I do? How can I prevent this from happening again?

If the information is truly not retrievable, you should start a new patient record, indicating that the original record was lost or destroyed and the date of the occurrence. The patient should be treated as a new patient at the next visit (at no added cost to the patient or third party payor). Have the patient complete all forms that you would have a new patient complete such as the patient history form, current medication list, etc. and perform and document an initial history and physical exam and any other tests or workup that is needed. If you can obtain copies of prior lab work, X-rays, operative reports or other patient records from other healthcare providers, be sure to identify them as a copy.

The HIPAA security rule requires that you backup your electronic patient records on a regular basis. When a computer crashes and data is lost, you should have a backup of your data available to restore your patient information. HIPAA regulations also require that you test your backups on a regular basis to insure that you can restore data from your backup files.

Backups can be completed locally by saving the information to media such as removable hard drives or flash drives, or can be completed remotely by utilizing an off-site backup service. If you choose to utilize a hard drive or flash drive to backup your data, but be sure to store the backup media off site in a secure location. In the event of a disaster such as fire or flooding, your risk of the backup being destroyed will be minimized.

Must I maintain patient records on staff members or close friends to whom I provide treatment?

Yes. If professional treatment is provided to an individual, even if that individual is a staff member or a friend, then a doctor-patient relationship has been established and a complete patient record should be maintained. There have been numerous incidents of lawsuits filed by staff members or friends of providers following “informal” treatment resulting in a bad outcome. Without patient records, it is almost impossible to defend a claim. In addition, state laws or rules and regulations require practitioners to keep patient records on each patient.

A patient’s records were stolen from my car/office. Do I have to notify the patient?

Previously, HIPAA didn’t require doctors to notify patients unless notification was part of mitigation of damages. However, the HITECH Act amended HIPAA privacy and security regulations to make them broader and more stringent. The HITECH Act creates a new requirement for providers to notify patients if the provider discovers a breach of protected health information. Written notification to patients must be provided by first class mail. If the breach affects 10 or more patients whose contact information is not known to the provider, notification must be on the provider’s website (if it has one), or in major print or broadcast media. If the breach involves more than 500 patients, notification must also be made to prominent news outlets in that state.

A minor patient’s parents are divorced. The minor lives with one parent, but the other parent pays for the minor’s treatment. Each parent is telling me they do not want the other parent to have a copy of the minor’s patient record. Which parent has the right to the minor’s medical information and/or billing information?

Generally, both parents have the right to their minor child’s health and/or billing information, unless there is a court order revoking the parental rights of one or both of the parents.

What should I do if one parent gives consent for the treatment of a minor and the other parent disagrees with the treatment plan?

While you may only need to have the consent of one parent, discord between parents could create future problems for you; especially, if an unexpected complication occurs as a result of treatment. The ideal situation would be to have a meeting with both parents in attendance and hold an informed consent discussion including the nature of the minor’s problem, your recommended treatment plan, the benefits and risks of the plan and any alternative treatment and the benefits and risks of each, including the benefits and risks of no treatment. During this discussion, both parents should be encouraged to ask questions and voice concerns and the doctor should answer each question or address each concern. (Document all of this in the minor’s patient record.)

If both parents then agree, the problem is solved. However, life is not always ideal, and one parent may still disagree. In this situation you could:

Offer to refer the minor to another doctor for a second opinion.
Elect not to perform the treatment or procedure if the treatment/procedure in non-emergent.
Ask the consenting parent to get a court order allowing the procedure.

Are there any circumstances where a minor can give consent for their own treatment?

State laws vary widely and the laws frequently change. Some states may permit a minor to consent to treatment based upon the minor’s legal status or the type of healthcare to be delivered. For example, state law may recognize a minor as emancipated and thus, able to consent for their own treatment if they are married or in the military. Or, the state may legally grant an order of emancipation to a minor.

Some states may also permit an unemancipated minor to consent for their own treatment for certain medical services such as contraceptive, prenatal, STD/HIV or mental health services. Additionally, some states allow “mature minors” to consent for general healthcare in certain situations.

Before accepting the minor’s word on his or her emancipation, ask to see the order or other appropriate documentation.

Can I evaluate a minor patient or perform a procedure on a minor patient if they are not accompanied by a parent or legal guardian? (For example, a minor comes in alone or is brought in by a grandparent, babysitter or older minor sibling.)

Yes, if you have valid consent from the parent. Ideally, you would have the parent or legal guardian provide you with a written authorization specifically giving their consent for you to see the minor and for a specifically named adult to bring the minor to the office or for the minor to come in alone. The authorization could be for one visit only or for a period of time. However, sometimes the minor just arrives with someone other than the parent or legal guardian with no written authorization from the parent. In such a case, you could call the parent or legal guardian and obtain telephonic permission for the minor to be seen and for pertinent medical information to be relayed to the person who brought the minor into the office. The phone call should be documented in the patient’s record.

Ideally, for visits that require more than general examination or follow-up, such as an initial visit, the need for a procedure or any treatment requiring informed consent, or if the minor has a condition which involves communication and/or education of the parent, it is highly recommended that you schedule/reschedule the appointment at a time the parent can be present.

My patient (or the patient’s spouse, etc.) is disruptive and abusive/threatening to me and/or my staff. What can I do?

The owners of the office practice have a duty to provide adequate and reasonable security for the safety of their staff, patients and others. Violence of any type (physical assault, verbal or written threats or harassment) should not be tolerated. You and your office staff should be trained to recognize patient risk factors, including a history of violent behavior, associated medical and psychiatric diagnoses, behavioral cues and substance abuse. Employees who frequently deal with people on the telephone and those who handle angry or dissatisfied patients should receive specific training in managing angry or difficult patients. Skills in deescalating the angry caller or complainant can go a long way in preventing a future act of violence.

For patients or persons accompanying patients who are disruptive, but are not really violent, try to determine the reason for their disruptive behavior. Maybe the patient is frustrated with long wait times or is confused about the care and treatment being rendered or is upset over a billing matter. You may be able to eliminate the disruptive behavior by addressing the patient’s concerns. If the patient or other person continues with the disruptive behavior, you should discuss with him/her that his/her behavior is not acceptable and that if the behavior continues, you will have no choice but to terminate the relationship if the abuser is a patient, or ask the person not to return if the abuser is someone other than a patient.

While normally you should follow a formal termination process in which you continue to provide care to the patient being terminated for a period of time until they can obtain a new doctor, you may be justified in immediately terminating a patient if the patient is violent or presents a threat of violence to you or your staff. The patient’s behavior should be documented objectively in the patient’s patient record. Any serious threats of violence should be reported to law enforcement officials.

Can I be held responsible for the actions of other healthcare providers (e.g., doctors, massage therapists, physical therapists, assistants, etc.) that are employed by me?

Yes. Employers can be vicariously liable for the actions of their employees. Under the cause of action respondeat superior (“let the master answer”), the master or employer is liable for the negligence of its servants or employees that occurs in the course of employment. Thus, an employer can be held vicariously liable for the negligent acts of nurses, employed doctors and other employees.

Employers may also be at risk for allegations of negligent credentialing if they fail to properly evaluate and reevaluate provider credentials and performance. Office practices must ensure not only the clinical competency of their doctors, but also that of midlevel providers and any licensed and unlicensed personnel with patient care responsibilities.

Employers may also be held liable for failure to supervise or direct the activities of midlevel providers and other licensed and unlicensed staff. For licensed and allied health staff, any gaps should be identified between actual job responsibilities and the scope of work permitted under state licensing laws (e.g., nursing and medical practice acts, doctor-assistant licensing acts, nurse practitioner licensing acts).

Do I need to notify my patients when I close my practice?

Current patients (any patient seen/treated by you on one or more occasions in the past 12 to 24 months) should receive written notification of practice closure approximately 90 days before the last date of active practice. The letter should be sent via certified mail, “return receipt requested,” and regular U.S. mail. The certified receipt should be attached to the file copy of the letter and placed in the patient’s patient record.

The letter should include the following:

The date the practice will close.
The importance of seeking continued care.
Information about where the patient’s records will be located (for example, another doctor’s office).
Notification that a copy of the patient’s records will be sent to another doctor of the patient’s choice upon receipt of the patient’s written authorization.
A patient record release authorization form.
A statement of how long the patient’s records will be retained.
A permanent mailing address (or P.O. Box) for all future record requests, if the records will not be maintained at the current location.

Patients receiving ongoing care and treatment should also receive verbal notification with a discussion of their plan of treatment and coordination of follow-up care, all of which should be documented.

Other patient notification efforts may include:

Placing an ad in the local newspaper notifying the public of the office closure.
Placing signs in the office notifying patients of the pending office closure.
Placing a message on the office phone system.

How can I prevent a patient or their spouse, family member, etc. from taking pictures or videos while I’m treating the patient?

If you do not want patients or others taking pictures or filming in your office, you may develop an office policy stating that the use of cameras or electronic devices are prohibited in the office. You could post a sign notifying patients and others of your policy in waiting and treatment rooms. If a patient or their family member, etc. begins to take pictures or videos, politely remind them of your office policy. If they insist on continuing, you may opt to discontinue treatment (unless doing so would put the patient in jeopardy) and formally terminating your relationship with the patient.

May I refuse to see a new patient if the patient is uninsured or has an insurance plan that I do not accept?

A doctor-patient relationship usually begins when a doctor begins to evaluate the patient’s condition. Therefore, in general, the doctor’s right to refuse to accept the patient must be exercised before the doctor evaluates the patient. If the doctor evaluates the patient and determines that he/she in is need of immediate care, then the doctor is responsible for ensuring that the necessary care is provided. If the patient is not in need of immediate care, the doctor may terminate the relationship.

Doctors do not have unlimited discretion to refuse to accept a person as a new patient. Federal laws prohibit doctors from refusing care for discriminatory reasons such as ethnicity, race or religion. Hospital by-laws, managed care organizations, other contractual arrangements and statutory requirements may limit a doctor’s right to refuse to treat patients.

While you may have the option to choose to refuse to accept patients based upon their inability to pay for treatment or services, you should be aware that a decision not to accept a patient for financial reasons may be difficult to explain to a jury if the person suffered harm by a subsequent delay in receiving medical care.

A patient had to be off work due to a chiropractic condition. The patient may now return to work with restrictions, but the employer does not have restricted work available. The patient is demanding that I release them to work without restrictions, even though I strongly feel restrictions are in order. What should I do?

It is important that you do not sign a release without restrictions if you feel the patient should have restrictions. If the patient ends up with a poor outcome as a result of working without restrictions, you would be exposed to liability since you signed a document stating the patient was able to safely return to full duty.

Discuss your rationale for your recommendations for restrictions with the patient, including the benefits and risks of the patient adhering to your recommendations. The patient may still refuse to accept your recommendations, and if so, you should document the patient’s informed refusal. However, you should not provide the patient with any release that is not in accordance with your professional judgment.

Does a doctor-patient relationship still exist if I have not seen a patient for a prolonged period of time?

The passage of time since the patient’s last visit to the doctor is not the sole factor in determining whether the doctor-patient relationship has been terminated. The duration of the doctor-patient relationship is measured on the individual facts of each case. Factors to be considered include:

The level of dependency the patient has on the doctor-patient relationship. A deep level of dependence can exist if the patient has had a long-term relationship with the doctor or a marginal level of dependence can exist if the patient was only seen one time. Generally, the more dependency a patient has on the doctor, the longer the relationship may be determined to exist, even after termination might otherwise appear to have occurred.
Explicit termination by the patient or the doctor.
Implied termination of care by the patient. If the patient begins treatment with another doctor and no longer keeps appointments with you, the patient implies that the relationship has ended.
Mutual agreement between the patient and the doctor that the relationship has ended. For example, the doctor has nothing further to offer the patient and refers the patient to a specialist or another doctor for continued treatment, or there is no further need for the doctor’s services.

How do I handle a patient who is making inappropriate remarks or romantic advances?

If you suspect a patient is interested in more than a professional relationship, let the patient know that your relationship is professional only and make the boundaries clear (e.g., no phone calls that are not of a medical nature, no gifts, etc.). Take precautions to make sure you are not in an unchaperoned situation with the patient. Avoid even the suggestion of impropriety by always conducting yourself in a professional manner. If the patient continues with inappropriate behavior, you may formally terminate the relationship.

May I treat a family member?

Situations that are personal and emotional may interfere with your professional decision-making and objectivity. This is recognized by professional organizations, academic literature and regulatory bodies which agree that the treatment of family members is professionally unwise and ethically problematical.

Risks of treating a family member include:

Personal feelings and fears might compromise a doctor’s professional objectivity and judgment leading them to either over- or under-estimate the seriousness of the patient’s condition.
Potential informality associated with treating family members may lead to inadequate history-taking, physical and diagnostic work-up and/or record-keeping.
Personal connections may also complicate the way in which the patient/family members and doctor interact. Potentially sensitive, but clinically relevant questions may not be asked or examinations may not be performed.
Family members may be less likely to disclose personal, but pertinent, facts.

However, there are instances when treating a family member may be necessary in limited circumstances, such as minor illnesses or emergency situations.

What is the proper way to terminate a doctor-patient relationship?

Termination of your relationship with a patient should always be carefully considered. However, there are many reasons that termination may be necessary. Examples include:

Continued patient noncompliance.
Patient demands treatment not considered to be within the standard of care.
Patient is verbally abusive/threatening to you or your staff.
Patient is abusing prescription drugs or controlled substances.
Patient refuses to pay or make arrangements to pay bills.
Doctor is retiring or moving out of the area.
Doctor is severed from a managed-care plan.
Any other reason the doctor feels is eroding the doctor-patient relationship.

You should not terminate a relationship based on the patient’s race, color, gender, religion, national origin or age.

The following steps can minimize liability exposure arising from termination of the doctor-patient relationship:

Review the patient record for conditions that might require additional treatment or monitoring.
Check the provisions of any contract signed with the patient’s health plan to ensure compliance with it.
If at all possible, discuss the termination with the patient in person.
Send a written notice of termination to the patient by certified mail, return receipt requested and by regular mail simultaneously. Keep a copy of the letter and the receipt in the patient’s patient record. If the patient refuses to sign for the letter, keep the copy of the undelivered receipt and the letter in the patient record.
The letter should state:
- The reason for termination (e.g., “you have consistently failed to follow my advice and recommendations,” “you have not followed through with arrangements to pay the balance due on your account,” “there are important differences in our views of medical care and treatment,” “the present nature of our doctor-patient relationship” or “your continued inappropriate behavior in my office.”),
- That you will continue to provide care to the patient for a reasonable period of time (usually 30 days) while he/she finds alternate care,
- If the patient has a condition that requires continued chiropractic treatment or follow-up, include that it is important for him/her to continue with treatment because of his/her current condition and that you encourage him/her to select another doctor promptly for ongoing care, and
- That a copy of the patient’s record will be sent to the new provider at the patient’s request.
Avoid referring the patient to another specific doctor. Instead, refer the patient to a provider referral source(s) in the community.

Prior to terminating your relationship with a patient, you are encouraged to contact OUM for direction.

If a patient has been sent a termination letter and is within the 30-daytimeframe of termination, do I have to see the patient for anything other than emergency care?

The amount of involvement with the patient in the 30-day period depends upon the situation. The main concern is to prevent or to be able to defend against allegations of patient abandonment. If the patient has a problem requiring continued observation or treatment and would normally be followed during the 30-day period, it would be prudent for you to continue to see the patient during the 30-day period if the patient chooses to return to see you. However, if the patient does not have a condition requiring continuing observation or treatment and would not normally require an office visit during the 30-day period, then you can tell the patient you will be available for emergency situations. Regardless, if a patient calls for an appointment in the 30-day period, it would be prudent to make an appointment and perform a proper examination and necessary treatment. However, you do not have to perform any elective treatment or procedures.

I have formally terminated a patient relationship, but they continue to call and harass my staff and me. What can I do?

First, find out why the patient continues to call. Do they have a legitimate question that needs to be addressed? Is it a billing issue? Do they want a copy of their patient records? Try to resolve the issue if possible. If the patient continues with harassing behavior, you could send the patient another certified letter confirming the date the relationship was terminated and that you and your staff will not be able to take any more calls. If the patient still continues to call, you can make a formal complaint with the local police department.

Can I ask a patient to provide written documentation that their dog is a service dog?

No, a patient is not required to show proof of a service animal. The ADA only recognizes dogs and miniature horses as service animals. In most cases a service animal must be harnessed, leashed or tethered. According to the ADA, “If there are no obvious signs as to why the patient needs a service animal, staff is only allowed to ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require documentation, require a special identification card or training documentation for the dog or ask that the dog demonstrate its ability to perform the work or task.” More information can be found about service animals on the ADA's website.

Am I practicing within the scope of chiropractic practice and will my professional liability insurance policy cover me for acts performed outside the scope of practice?

OUM cannot determine the scope of practice for any profession. The legal scope of practice is determined by state laws and regulations. Any questions regarding the scope of professional practice should be addressed by the appropriate state chiropractic association and other legal or regulatory authorities.

OUM’s professional liability insurance policy excludes “any act committed in violation of any law or ordinance.” A procedure performed which is clearly outside the professional scope of practice as defined by state law is an act committed in violation of the law and would not be covered. If the factual information is unclear, or the legal issues are in doubt, OUM may defend a case under a “reservation of rights,” which will defer the coverage decision until the case is disposed of by trial or otherwise. Where it is important to have legal questions of scope of practice decided before the malpractice claim is adjudicated, a declaratory judgment may be obtained.

When the OUM claims department is called upon to decide whether coverage for a particular claim is applicable, the relevant state statute or regulations will be examined. Sometimes, opinions from a court, attorney general or licensing agency will be consulted. The ultimate determination is always made on the facts of a specific case.

May I offer a discount to certain groups of individuals for marketing purposes?

You are strongly encouraged to obtain a legal opinion prior to offering any discounts. You need to be in compliance with Federal Fraud and Abuse laws, which are extremely complicated. Chiropractic practices should develop a corporate compliance policy with the assistance of an attorney who is well versed in such matters. Specific risk areas in which doctor practices may be vulnerable include coding and billing, provision of reasonable and necessary services, documentation and improper inducements, kickbacks and self-referrals.

I am considering offering coupons for chiropractic services as a way to market my practice. Is this a good idea?

No. It is not acceptable to offer discounts to Medicare or Medicaid patients. For private insurance patients, any discount would have to be passed on to the insurers. Additionally, it is not acceptable to offer coupons or discounts to waive co-pays or deductibles. We suggest you refrain from offering discounts for services not covered by insurance, as well because each state varies on whether or not it is legal to do so. If you are still considering offering discounts or coupons, consult a local attorney to determine if your state allows this practice.

I share office space with another doctor (separate practices). Am I liable for the actions of the other doctor?

You could be held liable for the actions of another doctor in your office even when there is no actual employment relationship or partnership if it appears that such a relationship exists (the doctrine of “apparent agency”). For example, a patient might assume a relationship exists if all doctor’s names are on the sign outside the building, letterhead, business cards, billing forms, etc.

You can reduce your risk:

Through proper patient information and disclosure practices that inform patients of the independent practitioner status of other healthcare professionals who share your office space.
By defining all business associations related to your practice by a written contract that outlines the terms of your practice agreement (all contracts should be drafted and/or reviewed by an attorney).
By requesting proof of professional liability insurance from all other healthcare professionals with whom you share space.

What are some of the risk issues involved with holding free chiropractic screenings for the public?

Malpractice – Screening participants could make allegations of malpractice such as failure to diagnose, failure to treat, etc. In order for malpractice to occur, a doctor-patient relationship must have been established during the screening. In order to educate participants that no relationship exists and to defend against allegations that a relationship was created by a screening exam, chiropractors are encouraged to have the people being screened sign a form setting forth the understanding:

That a doctor-patient relationship will not be created by the screening.
The examination is limited to that which is being screened for.
That any condition for which chiropractic or medical care may be needed should be followed up with a doctor of his or her own choice.

The form should contain very simple language with initials for each item and a signature on the bottom of the page. A separate form should be utilized for each participant. It is recommended that these records be maintained for at least 10 years.

Confidentiality – Under the Health Insurance Portability and Accountability Act (HIPAA), doctors must be careful not to violate an individual’s right to privacy. Perform screening examinations in an area that provides for privacy. Conversations with participants should be held in a private area to guard against being overheard by others. Any personal health information should be safeguarded, just as in the office setting.

Disclaimer: The information contained in these FAQs do not establish a standard of care, nor do they constitute legal advice. These FAQs are for general informational purposes only and are written from a risk management perspective to aid in reducing professional liability exposure. You are encouraged to consult with your personal attorney for legal advice, as specific legal requirements may vary from state to state. Links or references to organizations, websites, or other information is for reference use only and do not constitute the rendering of legal, financial, or other professional advice or recommendations.

Risk Management FAQs

Patient Billing Issues

Claim/Incident Reporting

Communication

Confidentiality/HIPAA

Consent/Refusal Issues

Documentation

Group Practice

Medical Emergencies

Patient Records

Minors

Office Practice Issues

Patient Care Issues

Professional Practice