Patients accessing records: Liability for the ED staff?

Don't act like you have something to hide

A growing number of hospitals are allowing patients to view their own medical records electronically. Does this increase liability risks for emergency staff?

Probably not, says Helen Oscislawski, JD, a health care attorney at the Lawrenceville, NJ, office of Fox Rothschild. "If the patient already believes that there is malpractice involved, it shouldn't really make a difference," she says. "If the patient does bring a med-mal lawsuit, records will be subpoenaed anyway."

Patients already have a legal right to access their medical information under federal law and under certain states' laws, Oscislawski notes. In addition, most ED patients do not have the medical or nursing training that would allow them to conclude, based on the medical record, that a provider was negligent or caused them injury, says Chris DeMeo, JD, a health care attorney at McGlinchey Stafford in Houston.

"Being open with patients in this regard may actually limit potential claims," he says. Refusing to show the patient the medical record or being defensive about the situation invariably leads to the impression that the health care provider is trying to hide something, which increases the feelings of suspicion and resentment that often fuel lawsuits, DeMeo says. In addition, a patient's impressions of negligence and proximate cause are usually inadmissible, he adds.

"Being defensive about allowing the patient to see the record would reflect poorly on the provider, whereas being transparent and addressing any concerns the patient has would give the record a certain reliability because the patient has had a chance to review it," he says.

ED nurses and physicians should be made aware of the possibility that patients may access their records, Oscislawski suggests.

"There should be some discussion as to how things should be written in an objective matter," she says. "It shouldn't impact clinical judgment or what is recorded, but clinicians should be mindful that patients are going to be reading this."

Because the medical record is a means of memorializing the care received by the patient, it should be accurate and explain what was done and why, as clearly as time and circumstances allow, says DeMeo. "The medical record may be the only or best evidence for the defense two or more years after the encounter," he says. "So it should be something that, as much as possible, can stand on its own."

If litigation occurs, a physician will be judged by how they treated the patient, as a patient and as a person, adds DeMeo. "Reports by the patient that they were not allowed to see their record or that their concerns were not taken seriously will undermine the defense," he says.