Public Health Law Map - Beta 5 - Medical and Public Health Law Site

supports the patient’s claims.
b) Defensible Records
Viewing the medical record from outside, without reference to its role in medical
care, leads to the defensible record, one that does not facilitate good care but does
contain enough information to allow a plausible defense for the physician’s actions.
For example, recording a child’s height and weight without plotting a growth chart
would allow the defense that the physician was aware of the child’s development.
Plotting the information, however, might have caused the physician to investigate
growth retardation and treat underlying medical problems. This would mitigate the
child’s injury and reduce the probability of litigation.
From the point of view of prevention, the best medical record is one that facilitates
good care. If the patient’s care is good, the probability of a successful medical
malpractice lawsuit is low. If, in addition to facilitating good care, the record fully
documents the patient’s course and the care provided, then it is unlikely that a
knowledgeable plaintiff’s attorney will even proceed with a case. This appears to be
happening with structured prenatal care records. These are printed medical records
with checkoffs for all routine prenatal care, combined with extensive patient
education handouts. As discussed in the Obstetrics section, there have been many
fewer than expected claims against physicians using these records. Given the
financial and emotional cost of medical malpractice litigation, the best record is the
one that convinces a plaintiff’s attorney that it is not worth filing a lawsuit.
2. Administrative Review of Records
Medical care providers who are subject to state or federal regulation, including
Medicare/Medicaid Conditions of Participation, must allow inspectors from these
programs access to their medical records. These inspectors may view the entire
record, including the patient identifiers, without the permission of the patients. This
is justified under the police powers as a reasonable intrusion based on a greater
societal need, the same legal basis as that used for requiring patient information to be
reported for various statistical and disease control purposes (see public health
reporting). State medical care practitioner licensing agencies have the right to inspect
medical records under certain circumstances.
3. Criminal Discovery
Prosecutors may seek medical records with a search warrant if the content of the
medical record is relevant to the underlying criminal case. This is common in
Medicare/Medicaid fraud prosecutions, where the record is relevant to determining if
the care that was billed was necessary and proper. Search warrants must be approved
by a court to ensure that there is probable cause to believe that the search will turn up
evidence of a crime. When medical records are being sought, the court will also
consider “… the type of record requested, the information it does or might
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