Access reports can make records more complete

The access reports proposed by the Office for Civil Rights' proposed Health Insurance Portability and Accountability Act ( HIPAA) accounting of disclosures rule could aid a plaintiff's attorney in filing a malpractice case, but they also could result in abandoning the case, says one plaintiff's attorney.

Plaintiff's attorney Jeffrey M. Kimmel, JD, a partner with the law firm of Salenger, Sack, Kimmel & Bavaro, New York City, says the medical records of a patient are the foundation of any malpractice case, so the access reports could result in the records being more complete and therefore more helpful to the case.

"But the reports also could result in me saying there's not really a case here and not going through with the claim," he says. "A lot of times we have to initiate a lawsuit because the record is incomplete, and then after we get all the information we find out there was no malpractice. So I see this going both ways. Anything that makes the record more accurate and complete is better for everyone."

Another attorney worries that the access reports could create a situation with people on a witness list or even being sued simply because they were on an access report. Litigation could be complicated and made more costly, says former critical care nurse, Jacqueline M. Carolan, JD, a partner with the law firm of Fox Rothschild in Philadelphia.

The peer review process has to be considered, Carolan says. If you have a physician who is under review, several people might view the records of that patient and many of the doctor's other patients to determine if the physician's care is appropriate.

"But then the patient sees 20 people accessing his record," she says. "I think it's something that could be a concern for the consumer who doesn't understand this process in the hospital."

Sources

• Jacqueline M. Carolan, JD, Partner, Fox Rothschild, Philadelphia. Telephone: (215) 299-2863. E-mail: jcarolan@foxrothschild.com.

• Jeffrey M. Kimmel, JD, Partner, Salenger, Sack, Kimmel & Bavaro, New York City. Telephone: (212) 267-1950. E-mail: jkimmel@salsack.com