Daniel A. Bernath

Attorney at Law

Member United States Supreme Court Bar. Member California Bar

13500 SW 99W #202

Tigard, Oregon 97223

(503) 639 6666 ussyorktown@comcast.net

Saturday, December 1, 2007

Custodian of Records

ASSERTING RIGHT TO AMEND
INCORRECT MEDICAL RECORDS

 

Re:

Dear Custodian of Records:

I am a Social Security Representative and the attorney for the above named claimant for Social Security disability benefits. It is thus my duty under United States Social Security regulation to provide SSA with complete and accurate evidence and medical records regarding the above named Social Security Disability claimant.

Crucial to a correct decision by the SSA Administrative Law judge is the credibility of the claimant. Also crucial is whether claimant suffers from any debilitating effects of illegal drugs and alcohol. If a SSA Administrative Law judge disbelieves the credibility of claimant it may wrongfully cause claimant to be denied benefits. If a SSA Administrative Law judge wrongfully believes a claimant would not be impaired except for an addiction, claimant could be denied benefits.

Claimant hereby demand his right to amend incorrect medical records. If your organization refuses to correct these medical records and the SSA Administrative Law Judge wrongfully determines my client is not credible or wrongfully determines that he was addicted during a relevant period then I will recommend to my client that he file suit in the appropriate court with the appropriate representation for damages caused by your organization’s medical negligence.

 

Respectfully,

Daniel A. Bernath

Daniel A. Bernath

Attorney at Law

 

 

 

Medical Doctors find errors in many medical charts

By ALICIA CHANG, AP Science Writer Wed Nov 21, 2007

The recent chatter on a popular social networking site dealt with a problem often overlooked in medicine: mistakes in patients' medical charts. The twist was the patients were doctors irked to discover gaffes in their own records and sloppy note-taking among their fellow physicians.

The frank dialogue on a doctors-only Web forum opened a window into a little discussed topic among physicians who find themselves on the other end of the stethoscope. Take Dr. Richard Botney who swapped experiences with fellow doctors.

Several years ago, Dr. Botney visited a specialist to check out a bothersome lump in his cheek. He took some medicine and the problem went away. Out of curiosity, Botney thumbed through his chart and was surprised to find a note from the doctor saying he had a stroke. "I never even had the symptoms of a stroke. No visual changes, no weakness, no numbness, nothing," Botney, an anesthesiologist at Oregon Health & Science University, said in a telephone interview from Portland.

Medical chart blunders are not uncommon. Sometimes, the mistakes can be harmless, but others such as an inaccurate diagnosis or a wrong medication could have serious consequences. Errors can creep into medical charts in various ways. Doctors are often under time pressure and may find themselves taking shortcuts or not fully listening to a patient's problems. Others rely on their memory to update their patients' files at the end of the day. Other mistakes can arise from illegible handwriting or coding problems.

"There is an implicit trust," said Gerald Kominski, associate director of the UCLA Center for Health Policy Research. "Most of us want to believe our doctors are hearing what we're saying and are accurately reporting that in our medical histories." Dr. Jerome Groopman, author of "How Doctors Think," said the onus is on doctors to check the accuracy of records with first-time patients even if it takes several visits. "You need to force yourself as a doctor to pause and to look meticulously at the record — to think, to question and to verify," said Groopman, professor of medicine at Harvard Medical School.

The online doctor's Web site, Sermo, tackled the issue of medical chart accuracy this summer. Posting under screen names, one physician with multiple sclerosis wrote about having trouble getting an insurance company to pay for a drug after the chart incorrectly noted a diagnosis of "multiple brain tumors." Another who took over a practice had to overhaul the charting system after finding errors in the old records. A third who had had several operations was shocked to see results of physicals and other tests in the medical charts that were never performed.

The American Medical Association, which represents doctors and medical students, doesn't have a specific project aimed at improving medical charting, but it's always looking at ways to better patient care, said Dr. Robert Wah, a board trustee.

A possible fix is to go paperless. But electronic medical records are expensive and sometimes different systems don't talk to one another. Only about 10 percent of doctors nationwide use some sort of electronic system. While electronic records can cut down on medication and transcription errors, it's not a panacea.

"You still need someone who's listening to the patient and deciding what needs to go in the records," said Dr. David Blumenthal, director of the Institute for Health Policy at Massachusetts General Hospital.

In the meantime, health experts recommend that patients periodically check their medical records as they would their credit report, especially if they have a chronic condition. Patients have the right to get a copy of their medical records under the federal Health Insurance Portability and Accountability Act, or HIPAA

Botney, the 52-year-old doctor whose records said he had a stroke, still doesn't know how the error occurred. He flagged the mistake to his specialist, but hasn't taken further action since the error hasn't affected his insurance or disability coverage.

Despite his experience, Botney said he is impressed with his current doctor, who took an hour to review his chart during the first visit.

In his own job, Botney said he takes copious notes in visits with patients and then reads them back. "They expect that what they tell the doctor is what's going to be charted," he said.

___

On the Net:

Guide to medical records rights: http://ihcrp.georgetown.edu/privacy/records.html  Go to that website and read their opinion:

Your Medical Record Rights

A federal law called the HIPAA Privacy Rule gives you the right to see, get a copy of and amend (correct) your medical record by adding information to it. (HIPAA stands for the "Health Insurance Portability and Accountability Act.") Most states also have laws that give you rights in your medical record. These consumer guides are intended to help you understand your rights to your medical records under a combination of these laws.

In Oregon you have the right to: (for Washington State, scroll down)

You can learn more about these rights in the following sections of guide.

Who Has to Follow These Laws?

Most Oregon health care providers (such as doctors and hospitals) must follow both the HIPAA Privacy Rule and state laws that give patients rights in their medical records.

There are some health care providers, however, that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computers to send health information for certain administrative or financial purposes (such as filing claims for insurance).

Example

Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the Rule.

If you have questions about whether your health care provider must follow the federal HIPAA Privacy Rule, you can contact the Office for Civil Rights, U.S. Department of Health and Human Services (OCR), the agency that is in charge of enforcing the HIPAA Privacy Rule. Section 4 of this guide lists contact information for OCR.

What if my health care provider does not have to follow HIPAA?

Even if your provider does not have to follow the HIPAA Privacy Rule, they still have to follow Oregon laws that give you rights with respect to your medical record. Section 6 lists some resources where you can read these state laws.

This guide, however, only explains how to get your medical record from Oregon providers who have to follow the HIPAA Privacy Rule and state law.

Are nursing homes covered by HIPAA?

Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that only apply to nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.

 

What Records Do I Have the Right to Get and Amend?

You have the right to see and get a copy of your medical record. This right often is called the right to access your medical record. You also have the right to have information added to your medical record by to make it more complete or accurate. This right is called the right to amend your record. (This guide will call these rights the "right to get and amend.")

Your medical record includes such things as:

You have the right to see, get a copy of, and amend these records whether they are kept on paper, on a computer, or in other format.

Who owns my medical record?

Under Oregon law, your health care provider owns the actual medical record. But you have the right to see and get a copy of it.

What happens if my medical record has information in it that came from a different health care provider?

Generally, if your provider has the medical information that you request, they must give it to you. You have the right to get the information no matter who originally put it in the record. Your right to amend this information may be limited, though. For more information about how to amend information in your record you can read Section 3 of this guide.

Do I have the right to get and amend records related to substance abuse or mental health treatment?

Maybe. The rules for when you can get and amend your records about mental health and substance abuse treatment can be different. For example, psychotherapy notes are treated differently than other records under HIPAA. Because the rules for mental health and substance abuse records can be different from other medical records, they are not discussed in this guide. You can find some resources that explain your rights in these types of records in Section 6.

Who Has the Right to Get and Amend My Medical Record?

You have the right to see and get a copy of medical records that are about you. You also have the right to correct medical records that are about you by having information added to them. (This guide calls these rights the right to "get and amend" your medical record.) If there is someone who acts as your personal representative for health care, they usually have the right to get and amend your record on your behalf.

 

Do I have the right to get and amend my minor child’s medical record?

Generally, yes. As a parent or guardian, you generally have the right to get and amend your minor child’s medical record. In Oregon, you usually have these rights when your child is younger than 18 years old.

As a parent, do I always have the right to get and amend my child’s medical record?

No. A parent does not always have the right to get and amend a minor child’s medical record. For example, if a health care provider reasonably believes that a parent is abusing or neglecting a child, the provider does not have to give the parent access to the child’s medical record.

Some other situations where parents do not have the right to get and amend their child’s medical records are discussed in the following questions and answers.

Who has the right to get and amend my child’s medical record once she turns 18?

Once your child turns 18, your child has the right to see, get a copy of, and amend her own medical record. This includes getting access to records that were created when she was still a minor. After your child turns 18, you usually no longer have the right to get and amend your child’s medical record just because you are her parent.

I am under 18 and am married. Who has the right to get and amend my medical record?

In Oregon, if you are under 18 and married, you have the right to consent to your own medical treatment. You also have the right to get and amend medical records that are related to this treatment. Your parents generally do not have the right to access your medical record once you are emancipated.

I am an unmarried minor but I can legally consent to certain kinds of medical treatment without my parents’ permission. Who has the right to get and amend my records that are related to this treatment?

It depends. In Oregon, as an unmarried minor you can consent to certain types of medical treatment without the permission of your parents. For example, in Oregon:

When you, as a minor, consent to such treatment, you have the right to get and amend the medical records related to the treatment. In Oregon, it is up to your health care provider to decide whether your parents also can get and amend records related to this treatment, with the exception of HIV testing. When you consent to an HIV test, your test results are confidential and your provider may not share the results with anyone, including your parents, without your permission.

Example

Jason is sexually active and under 18. He consents to be treated for chlamydia, a sexually transmitted disease. Jason’s mother later requests a copy of his medical record. It is up to Jason’s doctor, using his professional judgment, to decide whether Jason’s mother should get the part of the record about Jason’s chlamydia treatment.

The rules may be different when you, as a minor, obtain testing or treatment for other medical conditions (such as for mental or emotional disorders or chemical dependency) without parental consent. If you have questions or concerns about whether your parent will have access to your medical information, you should talk to your health care provider.

I am listed as my mother’s health care representative on her health care power of attorney. Do I have the right to get her medical records?

Yes. If you are named as your mother's health care representative on her health care power of attorney form, you generally have the right to get and correct her medical records that are relevant to making health care decisions on her behalf. You have the right of access only while the health care power of attorney is actually in effect.

Example

Maria’s mother signed a health care power of attorney form that gives Maria the power to make health care decisions if her mother is unable to make such decisions. Maria’s mother was in a bad accident and is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get her mother’s medical records. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.

Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these old medical records because the records have nothing to do with her mother’s current condition or treatment.

My father recently died. Do I have the right to get his medical record?

It depends. In Oregon, you have the right to get a deceased person’s medical records from a health care provider if you are the personal representative of the deceased person's estate (such as the executor or administrator of the estate). If there is no personal representative of the estate, the following persons, in the following order, may have access to a deceased's medical records:

The right of access belongs to the first person on the list who can be located with reasonable effort and who is willing to serve as the deceased's personal representative for medical record access and disclosure.

 

How Long Does My Provider Have to Keep My Medical Record?

State law requires many health care providers to keep your medical record for a specified period of time. For example, hospitals must keep most of your medical record for at least 10 years after the date you are discharged. X-rays, electrocardiograms, and similar items must be kept at least 7 years after the date you are discharged if your record includes professional interpretations of the item. The Oregon Medical Association recommends that doctors in private practice keep your medical records for a minimum of ten years. In practice, many health care providers keep their medical records longer.

You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.

****

In Washington you have the right to:
  • See and get a copy of your medical record.

     Your health care provider usually must let you see your medical record or give you a copy of it as promptly as required by the circumstances, but no later than 15 working days after they receive your request. This right is called the right to access your medical record.

    Your health care provider is allowed to charge you a fee for copying your record. They can also charge you the actual cost for postage if you have the copy mailed to you.

     
  • Request that your health care provider correct or amend your medical record.

     You have the right to request that your provider correct (edit) or amend (add information to) your medical record to make it more complete or accurate. If your provider denies your request, you have the right to add a short statement to your record that includes your requested correction or amendment and the reasons for your request.
  • File a complaint.

    You have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if you believe your health care provider has violated your right to see, get a copy of, or amend your medical record. You can also file a complaint with the state agency that regulates your health care provider.
     

  • Sue in state court for violations of your rights under state law.

    You have the right under Washington law to sue in state court for violations of your state medical record rights.

You can learn more about these rights in the following sections of guide.
 

Who Has to Follow These Laws?

Most Washington health care providers (such as medical doctors, chiropractors, hospitals and clinics) must follow both the HIPAA Privacy Rule and state laws that give patients rights in their medical records.

There are some health care providers, however, that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computers to send health information for certain administrative or financial purposes (such as filing claims for insurance).

Example

Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the Rule.

What if my health care provider does not have to follow HIPAA?

Even if your provider does not have to follow the HIPAA Privacy Rule, they still have to follow Washington laws that give you rights to your medical record. Section 6 lists some resources where you can read these state laws.

This guide, however, only explains how to get your medical record from Washington providers who have to follow the HIPAA Privacy Rule and state law.

If you have questions about whether your health care provider must follow the federal HIPAA Privacy Rule, you can contact the Office for Civil Rights, U.S. Department of Health and Human Services (OCR), the agency that is in charge of enforcing the HIPAA Privacy Rule. Section 4 of this guide lists contact information for OCR.

Are nursing homes covered by HIPAA?

Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that only apply to nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.

What Records Are Covered By These Laws?

Generally, you have the right to see, get a copy of and amend your medical record. Your medical record includes such things as:

  • Information that identifies you, such as your name and Social Security number.
  • Information that you tell your doctor, such as:
    • Your medical history.
    • How you feel at the time of your visit.
    • Your family health history.
  • The results of your examination.
  • Test results.
  • Treatment received in a hospital.
  • Medicine prescribed.
  • Notes your doctor makes about you.
  • Other information about things that can affect your health or health care.

You also have the right to obtain other information about you that is used to make decisions about you. You have the right to get these records whether they are kept on paper, on a computer or in another format.

What happens if my medical record has information in it that came from a different health care provider?

Generally, if your provider has the medical information that you request, they must give it to you. You have the right to get medical information that is used to make decisions about you no matter who originally put it in the record. Your right to amend this information may be limited, though. For more information about how to amend information in your record you can read Section 3 of this guide.

Do I have the right to get records related to mental health treatment?

Generally yes. In Washington, psychologists, mental health counselors, marriage and family therapists, and social workers have to follow the same rules for providing access to client records as other health care providers. You can read more about when your provider can deny access to your mental health or medical records in "Can My Provider Deny My Request for My Medical Record."

Who Has The Right to Get and Request a Correction or Amendment of My Medical Record?

You have the right to see and get a copy of medical records that are about you. You also have the right to request that your provider correct (edit) or amend (add information to) to your medical record to make it more complete or accurate. (This guide calls these rights the right to "get and amend" your medical record.) If there is someone who acts as your personal representative for health care, they usually have the right to get and correct your record on your behalf.

Do I have the right to get and amend my minor child’s medical record?

Generally, yes. As a parent or guardian, you usually have the right to get and amend your minor child’s medical record. In Washington, you generally have these rights when your child is younger than 18 years old.

As a parent, do I always have the right to get and amend my child’s medical record?

No. A parent does not always have the right to get and amend a minor child’s medical record. For example, if a health care provider reasonably believes that a parent is abusing or neglecting a child, the provider does not have to give the parent access to the child’s medical record.

Some other situations where parents do not have the right to get and amend their child’s medical records are discussed in the following questions and answers.

Who has the right to get and amend my child’s medical record once she turns 18?

Once your child turns 18, your child has the right to get and amend her own medical record. This includes getting access to records that were created when she was still a minor. After your child turns 18, you usually no longer have the right to get and amend her medical record just because you are her parent.

I am under 18 and am emancipated. Who has the right to get and amend my medical record?

In Washington, if you are under 18 and emancipated, you have the right to consent to your own medical treatment. You also have the right to get and amend medical records that are related to this treatment.

I am an unemancipated minor but I can legally consent to certain kinds of medical treatment without my parents’ permission. Who has the right to get and amend my records that are related to this treatment?

You do. In Washington, as an unemancipated minor, you can consent to the following types of medical treatment without the permission of your parents:

  • Birth control and abortion related services.
  • Outpatient mental health counseling if you are 13 or older.
  • Treatment for sexually transmitted diseases if you are 14 or older. (This includes tests and treatment to determine if you have a sexually transmitted disease.)

When you alone lawfully consent to any of the treatments listed above, only you have the right to access the medical record related to that treatment. Your parents do not have the right to access this part of your medical record unless you give your written permission. If you and your parents jointly consent to your treatment, both you and your parents may have access to information related to this treatment.

Example

Jason is 16 and is sexually active. On his own, he consents to be tested for gonorrhea, a sexually transmitted disease. Jason’s mother later requests a copy of his medical record. The doctor may not release the part of Jason's medical record related to the gonorrhea test to his mother unless Jason gives written permission to do so.

 

When minors consent to certain other types of treatment in Washington, such as inpatient mental health treatment, their parents must be notified.

If you have questions or concerns about whether your parent will have access to your medical information or be notified about your treatment, you should talk to your health care provider.

I have my mother's durable power of attorney for health care. Do I have the right to get her medical record?

Yes. If you have your mother’s durable power of attorney for health care, you generally have the right to get and amend her medical records that are relevant to making those health care decisions. You have the right of access during the time that the power of attorney for health care is in effect.

Example

Maria’s mother signed a durable power of attorney for health care form that gives Maria the power to make health care decisions if her mother is unable to make such decisions. Maria’s mother was in a bad accident and is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get her mother’s medical records. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.

Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these old medical records because the records have nothing to do with her mother’s current condition or treatment.

My father recently died. Do I have the right to get his medical record?

It depends. You have the right to get a deceased person’s medical records from a Washington health care provider if you are the personal representative of the deceased person's estate (such as the executor or administrator). If there is no executor or administrator of the estate, the following persons generally have the right to access a deceased person's medical records in this order of priority:

  • The patient's appointed guardian, if any.
  • The person, if any, to whom the patient had given a durable power of attorney to make health care decisions.
  • The patient's surviving spouse.
  • Children of the deceased patient who are 18 or older.
  • Parents of the patient.
  • Adult brothers and sisters of the patient.

The person with the highest priority on the list generally has the right to access the deceased patient's medical record. For example, if a deceased patient has a surviving spouse and an adult brother, the spouse (not the brother) has the right to access the deceased's medical record.

How Long Does My Provider Have to Keep My Medical Record?

State law requires many health care providers to keep your medical record for a specific period of time. For example, hospitals generally must keep medical records no less than 10 years following the most recent discharge of the patient. Hospitals must keep the medical of records of minors until the minor reaches the age of 21, or for at least 10 years following the minor’s discharge, whichever is longer. In practice, many health care providers keep their medical records longer.

You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it. Once you request your medical record, your provider must keep your record until they respond to your request (even if the general record retention period has expired).