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Who Owns the Medical Records?

A patient in a hospital demands to see his chart.  "After all," he says, "it's my medical record!"  Your co-worker tells you that the patient's chart belongs to the hospital.

Who is right?  Who owns the medical records?  And how does this affect legal nurse consultants?

Both the patient and your co-worker are right, but in different ways.  You see, the INFORMATION in the chart belongs to the patient (or guardian or personal representative), but the physical pieces of PAPER (or computer data in the case of electronic medical records) belong to the hospital.  That's why many hospitals have a policy that patients can see their records (to view the information) but only with a risk manager or other staff member there (to protect the integrity of the records so that the patient doesn't remove records or make them illegible). 

In addition to protecting the physical pieces of paper, hospitals and other health organizations have a duty to protect the confidentiality of medical records - because the patient owns the information contained on those pieces of paper, not the organization.  (There are some exclusions to this mandate, such as reporting of public health risks, child abuse, etc.).  The organization can't divulge this confidential information to others without the patient's consent, a court order, or a subpoena.

Certain types of information about mental health, substance abuse, and HIV / AIDS are super-confidential because there are social stigmas associated with those conditions.  These records are often stored in a separate, secure area within the medical records department.  

If the patient has a super-confidential condition, it may be listed in the patient's past medical history, which should alert the LNC to discuss this finding with the attorney.   No matter who owns the medical records, the legal nurse consultant assists the attorney in identifying and obtaining medical records. 

Although the end result is the same, the method to obtain medical records depends on whether your attorney represents the plaintiff or the defendant.  Since patients (plaintiffs) own the information in the medical record, their attorneys request copies of the records using an authorization.  The authorization provides the patient's consent for the organization to release the medical records for a specific reason.

After the case is in suit, attorneys who represent the defendant often obtain medical records with a subpoena duces tecum.  This type of subpoena requires the organization to produce the plaintiff's medical records. Included with the subpoena is a written statement which assures  HIPAA compliance and which demonstrates that the plaintiff knew about the subpoena and had no objections to it.  Obtaining super-confidential information may require a court order or a subpoena plus an authorization from the plaintiff.

So who owns the medical records?  Patients and health care organizations both own parts of the medical records.  And legal nurse consultants play a large role in assisting attorneys to get medical records through authorizations, subpoenas and other means.

...Katy Jones




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