B. Admission

• Library: A Practical Guide to Elder and Special Needs Law in South Carolina (SCBar) (2021 Ed.)

B. ADMISSION

1. Informed Consent

Except in emergency situations, the informed consent of a patient or a patient's authorized representative is necessary prior to any hospital treatment or procedure. All hospital admissions require the consent form or 'permission to treat' form to be signed by the patient or the patient's authorized representative at the time of each hospital outpatient visit or 'hospital bed' admission encounter.

In South Carolina, the doctrine of informed consent is established by case law, not statute.¹⁰ South Carolina's law on informed consent derives from Hook v. Rothstein, 281 S.C. 541, 316 S.E.2d 690 (Ct. App. 1984), aff'd, 283 S.C. 64, 320 S.E.2d 35 (1984), and requires a treating physician to obtain "informed consent" from the patient prior to performing a diagnostic, therapeutic, or surgical procedure.

South Carolina's informed consent doctrine strives to protect a patient's right to decide knowledgeably for himself or herself whether to undergo a procedure. 61 Am. Jur.2d Physicians, Surgeons, and Other Healers § 190; Fletcher v. Medical University of South Carolina, 390 S.C. 458, 702 S.E.2d 372, (2010). This duty includes a requirement for the treating physician to disclose the following information to a patient:

(1) the patient's diagnosis;
(2) the general nature of the proposed procedure;
(3) the material risks involved with the procedure;
(4) the probability of success associated with the procedure;
(5) the prognosis if the procedure is not carried out; and
(6) the existence of any alternatives to the procedure.¹¹

South Carolina recognizes a cause of action for negligence if a physician performs a procedure without informing the patient of "the material risks inherent to the proposed treatment or procedure." 27 S.C. Jur. Medical & Health Professionals § 13 (2019). As such, the physician has failed to act in accordance with the accepted standard of care if the patient's prior informed consent is not requested and received. A reasonable exception, of course, exists in emergency medical situations, where a physician is not required to get informed consent from a patient if it is necessary to administer immediate treatment or provide lifesaving measures. 27 S.C. Jur. Medical & Health Professionals § 13 (2019).

2. Access to Medical Records

Modern hospital systems are dependent on detailed documentation of patient-identifying information, medical diagnostics, test results, informed consent, and medical treatment plans.¹² As outlined in more detail herein, patients in South Carolina have the right to access their own medical records, and patients also can give health care providers permission to share medical records with another provider for treatment purposes.

State and federal law govern how long medical records must be retained. In South Carolina, "physicians shall retain their records for at least ten years for adult patients and at least thirteen years for minors. These minimum recordkeeping periods begin from the last date of treatment. After these minimum recordkeeping periods, the records may be destroyed." S.C. Code Ann. § 44-115-120 (1976). The federal Health Insurance Portability and Accountability Act (HIPAA) requires covered entities to retain required medical records for six years from the creation date or last effective date, whichever is later. HIPAA requirements preempt State laws if they require shorter periods, 45 C.F.R. § 164.316(b)(2), but since South Carolina's state law has a longer retention requirement, the state law must be followed.

What information is included in today's patient medical records? Modern medical records include substantial administrative and personal patient demographic, socioeconomic, and financial information (e.g. patient's legal name, address, telephone, gender, date of birth, Social Security number, marital status, race/ethnicity, occupation, place of employment, and detailed insurance information, etc.). This administrative data is obtained when the patient arrives at the health care site.

The clinical data in medical records includes the patient's complaint, laboratory test results, physician examination, diagnosis, health care history, physician's orders and management plan, and progress notes. 87 Am. Jur. POF. 3d 259, Karl Menninger (June 2019). Additional clinical data commonly include a comprehensive list of medications, allergies, consultation reports and evaluations by other departments, consent documentation, as well as relevant legal documents like advance directives including living will, health care power of attorney, Do Not Resuscitate (DNR) orders, organ or tissue donation forms...