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Most, if not all physician offices receive requests for copies of patient charts from time to time. It is not always apparent from the correspondence exactly why the records are being requested. Nevertheless, with proper authorization from the patient or the patient's representative, physicians are legally bound to provide a copy of the chart in response. Even when an attorney makes a request, often times the physician is not even made aware that a request for records has come into the office; the staff simply confirms authorization and ministerially copies and produces the chart to the requesting party. In today's litigious climate, that is a mistake. While the vast majority of requests do not lead to a malpractice suit, it is not always possible to discern which will and which will not take you down that dark road. Our experience in defending malpractice suits suggests that you should make it a policy in your office to be advised of every request that comes in from an individual or an attorney for a copy of one of your patients' charts.

There are sound reasons why you should be aware of requests for records that come from a patient or a patient's family member(s). First, knowledge of a request may spell the difference between recognition and gentle handling a frustrated patient and the mere appearance of apathy and indifference on your part that strips many individuals of the inherent hesitancy to bring suit against a professional even in the face of a negative treatment outcome. It is only logical that today's practice pace does not always allow for the amount of personal attention and relationship building that is pivotal to forming a true bond with each patient. While we do not advocate detailed discussions with an adversarial and venomous patient nor verbose attempts to talk a patient out of suit when it is clear that he/she is bound and determined to pursue that course, personal knowledge of a request for the chart can give rise to dialogue that may heal hurt feelings and prevent a potential lawsuit. It can be time well spent and certainly is a whole lot cheaper than the time you will invest in defending a malpractice claim.

Second, although the vast majority of "late entries" are made innocently and for the right reasons, there is nothing more difficult in the context of defending a malpractice suit than explaining why the chart obtained by the patient or patient's family near the time of the treatment differs from the chart gathered by the patient's attorney through the statutory claim letter or via a subpoena service after suit is filed. All too often, physicians oblivious to an earlier production of the chart take steps to "ensure" that records produced to an attorney pursuing a malpractice claim are "complete and accurate". Even when the late entry is justified insofar as depicting the true events surrounding the evaluation, the difference in the two charts is damning and can give value to an otherwise frivolous claim. The temptation is great! Prior knowledge of a records request and production by your staff will lend to proper handling of this tenuous situation. Of course, the best advice is to chart thoroughly, clearly, accurately, legibly, and yes - defensively, at the time of the treatment in question. Beyond that, live with your chart as it exists at the time of the records request. If you must "ensure the accuracy of the chart" after learning of a records request, do yourself a favor and make it clear that the entry is not to be construed as having been made at the time of the treatment when the other notes were made. Forensics can easily discern the difference in ink pens even when they come from the same box. Remember: Be smart - accurately identify the "late" chart!!

For obvious reasons, requests for records that come through an attorney should always come to your attention. Even if the reason for the request is unclear, knowledge that a patient has employed an attorney puts you on guard that you may be dealing with a litigious patient who may not hesitate to critique your every move, decision, diagnosis and statement. While the majority of physicians always use "ordinary care" (the legal standard of care) in dealing with their patients, it is certainly not a waste of energy to provide "extraordinary care" to the patient willing and ready to hire an attorney. You can't "step it up a notch" if you are not aware of your patient's use of an attorney to collect his/her records from your office.

Next time we will discuss statutory notice letters; their meaning; the law surrounding them; and measures that you should employ to ensure that a claim of fraudulent concealment relative to production of records does not thwart your otherwise slam-dunk statute of limitations defense. Until then, remember - "Practice Makes Perfect" was not meant to boost your ego.