Alabama Medical Records: Part 1, 1116 ALBJ, 77 The Alabama Lawyer 438 (2016)
| Author | David G. Wirtes, Jr. and George M. Dent, III, Js. |
| Position | Vol. 77 6 Pg. 438 |
David G. Wirtes, Jr. and George M. Dent, III, Js.
Introduction
This article addresses five topics: 1. The sources of duties to create and maintain accurate medical records, 2. Accessibility to such records, 3. Discoverability of such records, 4. Admissibility into evidence of such records and 5. Exceptions to discoverability and admissibility.
Section I outlines the state, federal and voluntary bases of duties to create and maintain accurate medical records. Section II discusses accessibility to medical records; Section III discusses discoverability; Section IV discusses admissibility and Section V surveys the exceptions to discoverability and admissibility–such as when records contain quality assurance or peer review matters–and catalogues many of the controlling state and federal reported decisions.
Why be concerned with these varying requirements? Because we presently are in the midst of great changes in the way judges, lawyers and litigants must understand and use medical records in litigation. Changes from traditional paper medical records to electronic medical records systems are occurring across the spectrum of healthcare providers, as intended by the Health Information Technology for Economic and Clinical Health (“HITECH” Act), which was enacted as part of the American Recovery and Reinvestment Act of 2009, Pub. L. 111-5, 123 Stat. 115 (commonly known as “The Stimulus” or “The Recovery Act”). Congress, through HITECH, provided more than $50 billion for healthcare providers to transition from paper to electronic medical records systems.1 As these changes unfold, problems concerning obtaining complete and accurate patient records for use in litigation have become commonplace.2 Our goal is to marshal the hodgepodge of state and federal statutes, regulations, Joint Commission standards and common law decisions into one relatively comprehensive guide. We scrupulously avoid editorializing with the express hope our article becomes a useful tool for all judges and lawyers in this state.
Part 1
Duty to Create and Maintain Accurate Medical Records
There are three fundamental sources of duty for creation, maintenance and access to accurate medical records. They are found in: (A) Alabama’s statutes and administrative regulations governing: (1) physicians, (2) nurses, (3) hospitals, (4) nursing facilities and (5) assisted living facilities; (B) federal Medicare and Medicaid regulations applying to: (1) participating hospitals, (2) nursing facilities, (3) assisted living facilities and (4) other specialties; and (C) voluntary standards such as accreditation guidelines issued by the Joint Commission (“JC”3 ), and universal standards established by the American Society for Testing and Materials (“ASTM”).4
a. Alabama statutes and administrative regulations
1. Physicians
Pursuant to the regulatory authority granted in § 34-24-311, Ala. Code 1975, the Alabama Medical Licensure Commission (“AMLC”), together with the Alabama Board of Medical Examiners (“ABME”), jointly promulgate regulations concerning physicians’ duties to create, maintain and provide access to medical records. The duties are mandatory, as shown by § 34-24-360 (22), which gives the AMLC “the power and duty to suspend, revoke, or restrict” a physician’s license to practice for failing to maintain a patient’s medical record to the commission’s “minimum standards.”5 The AMLC, (specifically relying on § 34-24-360(22)’s “minimum standard” provision), promulgated baseline standards concerning the creation, maintenance and accessibility of medical records that “every physician licensed ... in Alabama shall maintain for each of his or her patients.”6 Rule 545-X-4-.08(1), Ala. Admin. Code, requires physicians to “maintain legible well documented records reflecting the history, findings, diagnosis and course of treatment in the care of a patient ... for such period as may be necessary to treat the patient and for such additional time as may be required for medical legal purposes.” Further, records must: (a) “reflect examinations, vital signs, and tests obtained, performed, or ordered and the findings or results of each”7 ; (b) “indicate the medications prescribed, dispensed, or administered and the quantity and strength of each”8 ; (c) “reflect the treatment performed or recommended”9 ; and (d) “document the patient’s progress during the course of treatment.”10
Section 34-24-504, regarding “Patient Medical Records,” requires all physicians licensed by the state to protect patients’ medical information and, specifically to “comply with all laws, rules, and regulations governing the maintenance of patient medical records, including patient confidentiality requirements, regardless of the state where the medical records of any patient within this state are maintained.” Rule 545-X-4.06(11) explains that the AMLC has “the power and duty to suspend, revoke, or restrict” a physician’s license for “[u]nprofessional conduct,” such as “[i]ntentionally, knowingly or willfully causing or permitting a false or misleading representation of a material fact to be entered on any medical record of a patient,”11 and “[f]ailing or refusing to maintain adequate records on a patient or patients.”12
2. Nurses
The Board of Nursing (“BoN”) has statutory authority to adopt regulations and standards governing the licensure and conduct of nurses,13 and to “deny, revoke, or suspend any license” for various infractions, e.g., if a nurse is found “guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health.”14
Alabama Administrative Code Chapter 610-X-6 establishes the duties owed by registered nurses (“RNs”) and licensed professional nurses (“LPNs”) relative to medical records. These regulations define both comprehensive assessments (performed by RNs)15 and Focused Assessments (performed by RNs and LPNs alike).[16]
The BoN’s standards require nurses to “[r]espect the dignity and rights of patients,” including their right to the “[p]rotection of confidential information, unless disclosure is required by law.”[17] The BoN pertinently requires nurses to “[a]ccept individual responsibility and accountability for accurate, complete, and legible documentation related to ... [p]atient care records.”18 Like physicians, RNs and LPNs risk severe sanctions for non-compliance with the regulatory requirements.”19
3. Hospitals
Article 2 of Chapter 21 of Title 22 of the Alabama Code of 1975 governs the “[l]icensing of hospitals, nursing homes, and other health care institutions.”20 An entity must apply for and obtain a license from the state Board of Health (“BoH”) to “establish, conduct or maintain any hospital as defined in Section 22-21-20.”21
Section 22-21-28 empowers the BoH “to make and enforce, ... modify, amend, and rescind, reasonable rules and regulations governing the operation and conduct of hospitals as defined in Section 22-21-20. All such regulations shall set uniform minimum standards applicable alike to all hospitals of like kind and purpose ....”22 The BoH may suspend or revoke a license for “[v]iolation of any of the provisions of this article or the rules and regulations issued pursuant thereto.”23 Alabama Administrative Code Chapter 420-5-7 establishes the pertinent BoH regulations concerning hospitals’ duties to create and maintain medical records. Hospitals’ duties concerning medical records services are catalogued at Rule 420-5-7-.13(1)-(5).24 For example, “[t]he hospital shall use a system of author identification and record maintenance that ensures the integrity of the authentication and protects the security of all record entries.”25 “Medical records shall be accurately written, promptly completed, properly filed and retained, and accessible.”26 “All patient medical record entries shall be legible, complete, dated, timed and authenticated in written or electronic form by the person responsible for providing or evaluating the service provided, consistent with hospital policies and procedures.”27
4. Nursing Facilities
The definition of “hospitals” in § 22-21-20 includes “skilled nursing facilities, intermediate care facilities, assisted living facilities, and specialty care assisted living facilities rising to the level of intermediate care.” The Alabama Supreme Court held that a nursing home is a hospital for purposes of the Alabama Medical Liability Act (“AMLA”).[28] Thus, the statutes quoted above regarding the BoH’s licensure and governance of hospitals also apply to nursing facilities.
Alabama Administrative Code Chapter 420-5-10 outlines the duties imposed on nursing facilities by the BoH for creation and maintenance of medical records, which are detailed in Rule 420-5-10-.03(32)-(36).29 Among other requirements, the records must be “in accordance with accepted professional standards and practices” and must be complete, accurately documented, readily accessible and systematically organized.30 The “facility must safeguard clinical record information against loss, destruction, or unauthorized use” and also must clinical record must be retained for five years.31
5. Assisted Living Facilities
Assisted living facilities are also within the statutory definition of hospitals32 and thus subject to the licensing and other provisions of Article 2 of the Hospitals and Other Health Care Facilities Chapter of the Alabama Code. The duties imposed upon assisted living facilities to create and maintain medical records are found in Rule 420-5-4-,05(1)-(3).33 Records necessary for care, including care plans and admissions and examination records, "shall be accessible to the direct care staff at all...
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