Doctors and their Patient’s Medical Records — A Discipline Primer

What are the medical record keeping responsibilities of an off-site contract physicians who review prescription renew requests for a company, not a medical practice, that provided a prescription refill service? An important Pennsylvania appellate court decision recently affirmed a Pennsylvania Board of Medicine $2500 fine for a doctor who failed to properly retain and maintain his own medical records for patients for whom he renewed prescriptions. The doctor worked for a commercial company known as a clearinghouse, to review online prescription requests.

Pursuant to his contract, Dr. Karkalas filled prescription requests based upon the company’s customers’ online questionnaires which provided information such as the reason for the request, medical history, and other prescribed medications being taken. Although the company maintained a secure computer data base of all related renewal questionnaire information for the drug seeking patients, which the doctor received full electronic data base access during his contract, his access was terminated with the cancellation of his employment/independent services contract.

Aware of this possibility, the doctor briefly maintained his own copies of all prescription renewals on the company database. However, he did not print or otherwise personally retain prescription records or patient questionnaires. He did not maintain in his office any records, independent files, or even patient names pertaining to the online prescriptions. At some point in 2011, the doctor’s contract was terminated and he lost password access to retrieve and retain all of the medical records for the prescriptions he did write.

Apparently, one of the recipients for whom this doctor wrote prescriptions had difficulty securing a subsequent renewal, complained to the Board, and an investigation commenced, resulting in the $2500 fine and a requirement that the doctor take 10 hours of education class on medical records maintenance. The doctor contested this assessment.
The focus of the doctor’s appeal was the changing nature of the medical field and practice as it related to medical contract services for hire, internet communications, and physician employees of large companies providing long distance medical services during contractual time and access to those medical records after contracts are terminated. The case has several simple lessons.

The regulations that address physician’s legal obligations to create and maintain medical records are found at Section 16.95 of the Board’s Regulations, 49 Pa. Code § 16.95, which states, in relevant part:

(a) A physician shall maintain medical records for patients which accurately, legibly and completely reflect the evaluation and treatment of the patient. The components of the records are not required to be maintained at a single location. Entries in the medical record shall be made in a timely manner.

(e) A patient’s medical record shall be retained by a physician for at least 7 years from the date of the last medical service for which a medical record entry is required. The medical record for a minor patient shall be retained until 1 year after the minor patient reaches majority, even if this means that the physician retains the record for a period of more than 7 years.

(f) The components of a patient’s medical record, which are prepared by a physician or his agent and which are retained by a health care facility regulated by the Federal government, or by the Department of Health or the Department of Public Welfare are considered to be a part of the patient’s medical record which is required to be maintained by a physician, but are otherwise exempt from the requirements in subsections (a) — (e). .

Initially, the doctor did not argue that he was employed by a “health care facility” under section 49 Pa. Code § 16.95(f), for whom the record keeping regulations would not apply. This was a huge error. Under the current practice in the medical field, large medical practices are similar to hospitals in that they contact out the prescription refill process, which prescription are paid for by many different insurance programs. If the medical practice which contracted out Dr. Karkalas’ prescription renewal services accepted federal or state Medicare and Medicaid as payment for the prescriptions the doctor wrote, his company, he should have argued, should have been considered a health care facility regulated by the federal government, or by the Department of Health or the Department of Public Welfare, for which the individual record keeping responsibilities would not have applied. Having failed to raise this argument, such was waived.

Next lesson, is how to protect the contracted medical practitioner for being sanctioned for not independently securing and maintaining for 7 years either copies of, or access to, the medical records of any patient for whom any type of medical treatment is provided. Contractually, long-term electronic access to patient database of medical records need be insured. This is regardless of the company or employer for whom the practitioner worked.

Any contract termination clauses must include a surviving obligation of the company to allow for secure access to, or a provision for timely copies of, all medical records for 7 years. Current electronic off-site storage of medical records easily allows for structured access to encrypted, password protected records through medical reproduction companies or records custodians. For Karkalas, it was this failure to insure his unfettered long-term access upon which the disciplinary action was based.

Unfortunately, even possessing some access to old records was not enough. The Board reviewed the record keeping regulations to send the simple message to all physicians. It is your obligation to obtain, secure, maintain, and protect copies for yourself all of the medical records of the patients for whom you provide a medical service. Failure to do so will constitute engaging in an unprofessional conduct.

Obviously, this means in large practices or small ones, for those independently hired contract physicians or those working for private companies, doctors must at a minimum possess contractual access to all electronic data of their patients.  Medical records must be readily accessible via the internet, off-site, and in complete form. Individual copies need not be preserved. Simply having immediate “access to” your patients’ medical records through non-cancelling passwords will protect you from at least the Pa Medical Board.  This little issue must be addressed in all contract negotiations.

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ADHD and false allegations of Driving Under the Influence

Currently, absent a specific odor of alcohol, individuals suffering from ADHD who drive while under the influence of prescribed ADHD medications or are non-medicated can still be charged with, and found guilty of, violating the DUI or DAI statutes of most jurisdictions.  In Pennsylvania an officer can testify, with no intoxicant basis, that an operator of a motor vehicle is incapable of safe driving simply based upon behavioral observations. 

For the DUI practitioner, providing a judge with an alternative explanation for a client’s erratic and suspicious behavior while operating a car, and during a motor vehicle traffic stop or field sobriety test, is one way to prevail in a DUI prosecution.  Society’s current fixation on percentages of our population who have been, or should be, diagnosed with juvenile or adult onset attention deficit hyperactivity disorder parentheses (“ADHD”) presents just such an explanatory opportunity to a willing bench.

The physical manifestations of individuals suffering from ADHD are important factors about which  traffic cops or DUI police officers should be cross-examined.  This is because there are significant behavioral similarities in individuals who fail sobriety test due to intoxication and those who fail due to their ADHD behavioral mannerisms.  Individuals suffering from ADHD who attempt to follow instructions from a GPS device, in traffic, at night, while either talking on the phone or listening to music are bound to display to a traffic cop difficulties operating a car. 

The typical ADHD sufferer not under the influence of drugs or alcohol sometimes normally drives as follows: making a wide turn, straddling centerline, almost striking an object, weaving, swerving, driving too slowly, too closely, breaking erratically, or drifting into another lane.  They also display slow response to traffic signals, inconsistent operation of a motor vehicle, stopping inappropriately and turning abruptly.  Experienced DUI trial attorneys recognize that these motor vehicle code violations constitute probable cause to initiate a traffic stop.  Trained counsel must now be prepared to have a court understand that such operational deficiencies are due to ADHD and not legal or illegal medications or alcohol intoxication.

            However, operational observations are only one part of the cross-examination job.  Questioning the basis for an officer’s conclusion that a client failed a field sobriety test is the next step.  Here, an ADHD diagnosis is really helpful.  This is because ADHD symptoms include poor sustained attention, distracted ability to listen, impaired impulse control and hyperactivity, excessive anger, aggression and risk-taking.   ADHD patients typically fail to properly pay attention to an officer’s instruction, interrupting them during instruction giving, and commencing the physical examination tests prior to be instructed (because they were not listening or could not listen patiently to the entire instruction).  These behavioral failings easily cause the ADHD suspect to fail a field sobriety test.  As well, the ADHD sufferer’s inability to follow complex physical coordination instructions typically leads to improper turning, standing on the wrong leg, and not counting out loud as instructed.  Presenting as confused and flustered, ADHD individuals always present difficulty in following simple directions given by in investigating officer in a rapid manner, on the side of the road, at night.  Having failed probably all of the field sobriety tests, the officer can now testify of these failures as the basis for his conclusion intoxication or inability to operate a motor vehicle safely.

I view cross examination of any expert as a laser cutting off the legs of a three legged stool, causing the expert’s opinion to fall as the stool falls.  Sufficiently questioning the testifying officer about his familiarity with ADHD mannerism and their overlap with intoxication behavior will give a judge a reasonable explanation of why the officer may have observed what he did, but why such is not an impairment and why such behavior is not a basis to conclude intoxication.  Creating that reasonable doubt as to the basis for the officer’s conclusions, and therefore guilt, will require a trained judge to enter a not guilty verdict. 

Please call me to discuss your impaired driving case and its intersection with your ADHD diagnosis or undiagnosed behavior. 

Police Search Trash and Secure Evidence for Trial -Suppression Denied

Depending from where a homeowner’s trash is removed and what arguments are raised on suppression, evidence derived from these trash pulls is admissible in court. Commonwealth v James, 2013 Pa. LEXIS 1096 (May 31, 2013) evidences when inexperienced counsel make incorrect arguments which allow the Commonwealth to fix their otherwise faulty case, your better off with trained legal counsel.

On April 11, 2007, based upon an anonymous tip, police search the garbage from Darrell Tyrone James PA residence, discovering drug paraphernalia, marijuana and cocaine residue. We do not know from where the trash was pulled.  The police investigation further reveals James’ five prior narcotics arrests and one firearms violation conviction. A confidential informant (“CI”) subsequently told police James was selling drugs from his house. Police surveillance was conducted, revealing individuals coming and going from the residence in brief increments of time and several vehicles pulling up in front of the residence. No drug buys were witnessed or staged with a CI. On April 19, 2007, police conducted a second trash pull of James’ garbage, discovering more drug paraphernalia and residue.

Based upon this information, an affidavit of probable cause is drafted to secure a search warrant to search the residence. James was arrested after the search revealed guns and drugs. James files a Motion to Suppress, arguing the affidavit did not specify from where the trash was actually taken when the police seized it. If the trash was on the curb awaiting collection, it was abandoned, and police could lawfully search it without a warrant; if it was on James’ porch, he retained a privacy interest in it, and the trash pull was unlawful.

The trial court granted suppression due to the factual omission of from where the trash was taken. The Commonwealth argued for reconsideration claiming that because James contested the truthfulness of the allegations in the affidavit, and not just the legality warrant based upon the facts as stated, the suppression court was permitted to receive additional evidence outside of the warrant’s four corners. The trial court reconsidered its ruling and permitted the Commonwealth to augment the affidavit of probable cause with testimony outside the four corners of the warrant. This is a significant procedural fact.

What evidence a judge issuing a search warrant may consider is set forth in Pennsylvania Rule of Criminal Procedure 203. There, that rule, the James Court held, plainly states the issuing authority may not consider evidence outside the affidavit in making the probable cause determination, and the suppression court, in reviewing this determination, may only consider the affidavit. However, since 1973 the Pa Supreme Court has also held that a defendant has the right to test the veracity of the facts recited in the affidavit in support of probable cause. Commonwealth v. Hall, 302 A.2d 342, 344 (Pa. 1973).

In Hall, the court stated, “‘To rule otherwise, would permit police in every case to exaggerate or expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.'” Id. (quoting Commonwealth v. D’Angelo, 263 A.2d 441, 444 (Pa. 1970)). Accordingly, our Supreme Court has concluded the defendant “at the suppression hearing should have been afforded the opportunity through ‘the traditional safeguard’ of cross-examination, to test the truthfulness of the recitals in the warrant[.]”

This is a Frank’s hearing in federal court, based upon the case of Franks v. Delaware, 438 U.S. 154 (1978), which addressed whether a defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit of probable cause. After a defendant makes a substantial preliminary showing the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, the Fourth Amendment requires a hearing be held at the defendant’s request.

The issue in James became when a defendant in state court challenges both the factual averments in the affidavit and the legality of the affidavit, may the Commonwealth present additional evidence at the suppression hearing upon which the court may rely in rendering a decision. The James Court said yes.

Because the procedural rules specifically require a defendant to state all of his/her basis for suppression, thereby giving the Commonwealth notice of what police behavior it is defending, the Commonwealth typically presents evidence of the affiant at the suppression hearing. Cross-examination may reveal lies, ambiguities, and factual divergences between the testimony and the affidavit as drafted. However, the suppression court is permitted to look at the totality of the circumstances presented in the warrant and to which the officers testified, in conjunction with weighing the credibility of the officer’s testimony, to render a conclusion on the factual and legal validity of magistrate’s action of approving the warrant.

The import of this case is simple: be careful of the legal basis for the relief you seek in court. Had counsel simply argued the four corners motion without alleging officer credibility and lies (a federal Frank’s motion) then the court is only permitted to consider the warrant, which was facially deficient and suppression would have occurred. Once, counsel alleged officer fabrication, the Commonwealth was able to augment the warrant and present its officers testimony at the suppression hearing, which testimony the court properly considered in denying the Motion to Suppress.

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