Authored by: Susan O. Scheutzow
Earlier today, the Ohio Supreme Court took an expansive position on what qualifies as a patient’s medical record, holding that patient information, regardless of location, is part of the medical record. This ruling may significantly alter the manner in which records are maintained and produced by Ohio health care providers.
The Issue and Decision:
Ohio Revised Code Section 3701.74 provides that health care providers are to make patients’ medical records available to the patients, or their permitted representatives upon written request. The records are to be made available for inspection free of charge, and Ohio Revised Code Section 3701.741 sets forth the fees a health care provider may charge if the patient wants copies of the records.
Many health care providers maintain an official “medical record” which contains reports, discharge summaries, test interpretations and treatment records but does not include things such as actual x-rays, monitoring strips and other information that support the reports and summaries in the official medical record.
The statute defines a “medical record” as:
Data in any form that pertains to a patient’s medical history, diagnosis, prognosis, or medical condition and that is generated and maintained by a health care provider in the process of the patient’s health care treatment.
(emphasis added). When a patient requests his or her medical record from a health care provider, the provider normally produces only the “official medical record” maintained by the medical records department and often does not search for, nor produce, any patient information maintained outside of the “official medical record.”
The question raised in Griffith (executor) v. Aultman Hospital, Slip Opinion No. 2016-Ohio-1138 was whether information maintained outside the “official medical record” must be disclosed to an individual making a medical records request. In this case, the executor of the patient’s estate was seeking to obtain cardiac-rhythm strips. The hospital regularly deleted the monitor data 24 hours after the patient’s discharge, but in this instance, maintained the data only for risk management purposes.
In a 5-2 decision, the Ohio Supreme Court took a very expansive view of what constitutes the patient’s medical record and stated that the location of the information is irrelevant. If a healthcare provider “made a decision to keep data that was generated in the process of the patient’s healthcare treatment and pertains to the patient’s medical history, diagnosis, prognosis or medical condition” it is part of the medical record and must be produced.
This Decision Applies to All Health Care Providers:
This decision applies broadly to “health care providers” defined to include all diagnostic and treatment outpatient providers, all hospitals, all long-term care providers including nursing homes, residential facilities and homes for the aging; licensed health care professionals including physicians, dentists, nurses, optometrists, opticians, pharmacists, psychologists, chiropractors, hearing aid dealers, and occupational, physical and speech therapists. If you are required to provide patients/residents with their medical records, this interpretation of the law applies to you.
This Decision Does Not Alter Practices as to Drug and Alcohol, Mental Health and Other Records:
This decision does not make changes regarding special rules regarding the production of mental health, substance abuse, psychotherapy notes and other special records. Any records in special categories which you did not need to produce previously, you do not need to produce now.
This Decision Does Not Mean That You Need to Keep Records You Otherwise Wouldn’t Have Kept:
If you have policies to regularly destroy records, such as Aultman’s policy of deleting cardiac monitoring data after a patient’s discharge, you can still follow such policies. Regular record retention policies are not affected.
Suggested Actions:
This decision does not mean that you need to start to include ancillary data such as x-rays, videos, and other records in what providers have always considered to be the official patient medical record. It does mean that the ancillary data, wherever located, is now subject to disclosure upon a medical records request. The following are suggested actions which may be taken to make sure you comply with the new legal interpretation in Ohio as to what constitutes the official medical record:
- Review your medical records request forms. Many patients requesting records may not want all of the data maintained in locations other than the “official medical record” and just want to see the summaries and interpretations. If your request forms do not already contain categories indicating what the patient is requesting, simply amending your request forms to contain such categories may, in many cases, alleviate the need to provide information contained in places other than the formal medical record.
- Review the places outside of the medical record in which you maintain patient medical information. If patients request all of their information, you will need to provide it within a reasonable amount of time, and you will need to know where that information is located. The law has always provided that you must provide access to patients to review their medical records free of charge, and this now applies to this broadened definition of the medical record. You may find that you need to provide an area for patients to see their data maintained in places other than the medical records department.
- Review your record retention policies. Many health care providers maintain patient information for much longer than required by law. Now that upon patient’s request you will need to incur the expense to provide old patient data that was never contained in the official medical record, we strongly recommend that records are only retained as long as required by state or federal law.
- Review your email policies. Emails and other correspondence regarding patient care may be considered part of the patient’s medical record. Policies that prohibit emails containing criticism and opinion regarding patient care have always been prudent, but now should be given more attention.
We will let you know of other developments in this area of the law as they occur.
Please feel free to contact Susan Scheutzow at sos@kjk.com (216-736-7228) or Jennifer Hart at jmh@kjk.com (216-736-7208) regarding this topic.