A member of the hospital’s medical staff has been accused of improperly billing Medicare for treatments done in his office that were not medically necessary. A subpoena for copies of patient records was received but the subpoena does not include a patient authorization for release of the records. In addition, the subpoena requests all “peer review committee” records pertaining to this physician. Consider the following questions:
- What must you check before releasing the patient records?
- What legal concept described in this chapter will determine admissibility of the hospital records into evidence?
- The defendant’s lawyer objects to the subpoena, arguing that the patient records are “hearsay.” To resolve this issue, identify at least one element that will likely be required in your testimony (or certification of the records).
- Your hospital attorney objects to the subpoena of the peer review committee materials, citing state law that protects peer review records from discovery. What legal concept describes this protection?
- In the course of acting on the subpoena, you discover that one of the patient records (which are electronic) has had major sections deleted. Your review of the audit trails determine that a hospital staff member was responsible for the deletions. Under what legal concept could the hospital be subject to liability for the deletions? What should have been done to protect the records?
Expert Solution Preview
Introduction:
As a medical professor with expertise in legal and ethical concepts related to the field, I will provide answers to the questions regarding the hospital’s medical staff member who has been accused of improperly billing Medicare for medically unnecessary treatments, and the subpoena received for copies of patient records.
1. What must you check before releasing the patient records?
Before releasing patient records, it is important to check if the subpoena is valid and complies with legal requirements. In this case, the subpoena does not include a patient authorization for the release of the records, which raises concerns about patient confidentiality. Therefore, it may be necessary to seek legal advice and clarification before releasing any patient records.
2. What legal concept described in this chapter will determine the admissibility of the hospital records into evidence?
The legal concept that will determine the admissibility of the hospital records into evidence is the hearsay rule. Hearsay evidence refers to any statement or document that is offered in court to prove the truth of its contents, but which is not based on the personal knowledge of the witness. To be admissible, the hospital records must meet the requirements of the hearsay rule, which can vary depending on the specific circumstances of the case.
3. The defendant’s lawyer objects to the subpoena, arguing that the patient records are “hearsay.” To resolve this issue, identify at least one element that will likely be required in your testimony (or certification of the records).
To resolve the issue of the patient records being considered hearsay, it may be necessary to provide testimony or certification that the records were made in the regular course of business and are trustworthy. Courts often consider the reliability of the records and whether they were created for a business purpose rather than solely for use in litigation.
4. Your hospital attorney objects to the subpoena of the peer review committee materials, citing state law that protects peer review records from discovery. What legal concept describes this protection?
The legal concept that describes the protection of peer review records from discovery is the peer review privilege. This privilege is intended to encourage healthcare providers to engage in peer review activities to improve the quality of healthcare without fear of legal repercussions. States have laws that protect the confidentiality of these records and prevent their disclosure in litigation.
5. In the course of acting on the subpoena, you discover that one of the patient records (which are electronic) has had major sections deleted. Your review of the audit trails determines that a hospital staff member was responsible for the deletions. Under what legal concept could the hospital be subject to liability for the deletions? What should have been done to protect the records?
Under the legal concept of spoliation of evidence, the hospital could be subject to liability for the deletions. Spoliation of evidence occurs when a party intentionally or negligently destroys or alters evidence that is relevant to pending or potential litigation. The hospital staff member’s deletion of major sections of the patient record could be seen as spoliation of evidence and could be used against the hospital in any legal proceedings related to the patient’s treatment. To protect the records, the hospital should have had adequate safeguards in place to prevent unauthorized access or modifications, and should have taken prompt action when the deletion was discovered.