You are working at the reception desk of a healthcare practice. Suddenly, there is a police officer or court officer giving you a court order to produce patient records!
In this month’s Q&A with Jean, we discussed how to prepare patient records for a court order with confidence!
Now, just a reminder, I’m not a lawyer and I don’t play one on TV. These are my recommendations based on my experience as a director of health records in hospitals in Canada, as a court reporter, and as a mentor to clinic managers in independent healthcare practices and not legal advice.
Follow These Steps
In this article, I am not discussing a situation which relates to a life-threatening situation that requires an immediate response. I am also not discussing when order relates to the type or quality of healthcare provided to the patient or when the actions of the healthcare provider or clinic is being challenged or reviewed. These are topics for a different article.
Your reception staff should not accept the court order but, instead, immediately ask the officer to wait for a few minutes so that they can request their supervisor or privacy officer to meet with them.
When the court order is an administrative request for information, the supervisor or privacy officer will accept the court order from the officer. Before the officer leaves, make sure that you read the court order carefully and ensure:
- Who is named in the court order often the clinic manager of the clinic. Your clinic should be specifically named or, perhaps, the name of your lead physician or healthcare provider.
- Record the date and time that you received the order.
- Clarify when the response is required.
- The name and the contact person of the officer that delivered the court order (if possible) or, at minimum, the contact information of the court, for example, the court clerk’s office or the witness co-ordinator, or the sheriff’s office is included on the court order.
- The province or jurisdiction of the court. Generally, it should be the same province where your clinic operates. If not, contact your lawyer for advice on how to respond.
Review Your Policies and Procedures
This is not a routine request from a patient to access their health records or a request to disclose their records to a third party like a lawyer or insurance company. In those routine requests, patients routinely require to provide a written, signed consent before you can disclose their records.
When you receive a court order or subpoena to produce patient records at a court or other legal proceeding, you are not required to get a signed consent from the patient.
Each healthcare practice should have detailed policies and procedures on how to prepare patient records for a court order. Review these now.
If you don’t have up-to-date policies and procedures, see the Practice Management Success Tip, How to Prepare Patient Records for a Court Order.
Validate the Court Order
Read the court order carefully. In particular,
- Phone the contact number on the court order.
- Confirm the date, time, and location that you are required to appear.
Locate the Patient Record
Find the patient information maintained in an electronic database, electronic medical record (EMR) and/or paper records. Remember to look for both active and inactive patient records as needed by the court order.
Read the patient record carefully, line by line, to ensure that the record is complete. For example, make sure that all lab reports, prescriptions, consultation notes, etc. are included in the record.
Secure the record to prevent snooping or modification to the record. Also ensure that the record is available for continuing care and treatment of the patient, if needed.
In an electronic record, prepare an audit log of all the transactions on that patients’ chart.
Ensure there is no duplicate or second chart for the patient that may have been created in error. Search by alternate names, spellings, date of birth, etc.
Ensure that each custodian included in the patients’ care and your healthcare practice’s privacy officer is informed of the court order to produce the record. The custodian should be provided an opportunity to review their clinic notes. Remind the custodian that they cannot further disclose the patient's record.
Prepare the Patient Record
Review the court order and identify exactly what information is requested. It might be for specific dates or a condition or treatment.
Keep complete and detailed notes about how you prepared your response to the court order. You will bring your notes with you to court to assist you in your testimony about how your clinic creates and maintains patient records and what you did to respond to the court order. After your court appearance, you will maintain your notes as part of the business records for the clinic.
Collect the information and record each of your steps and your results, including the records that you searched for and did not find any results.
If you maintain your patient records in an electronic medical record (EMR) or digital practice management software, print out a hard copy of all the information that responds to the information that is requested.
Sever (also known as redact or black-line) any information that is not appropriate to include in the disclosure. Cross-reference each redacted entry to the legal authority not to include the information in the disclosure.
If you are using an EMR, organize the paper print-out in a format that makes sense. This might be chronological date order, or group like records (clinic notes, lab results, etc.) together.
Create a ‘Table of Contents’ of the information in the patient record. This will help you in your testimony to quickly find requested information, help the court to locate information in the records that you have prepared.
At the same time, handwrite in ink at the bottom of each page the sequential page number in the package. Update the table of contents with the page numbers.
Stamp ‘COPY’ on each page.
When the package is complete, make a photocopy (or two) of the entire package. The ‘original’ paper copy will be maintained at the clinic. Bring the original and the copy to court and ask the court to accept your copy. Return the original package to the clinic and securely maintain this as part of the business records of the clinic until the court file is complete.
When You Attend At Court
As the clinic manager, your role at the court is to tell the court how patient information is collected and maintained in your healthcare practice. Your job is not to interpret the content of the clinic notes.
A few days prior to the court date indicated on the court order, phone the clerk’s office or witness support office to confirm the date, time, and location of the proceedings and if you are still required to attend.
On the day of the proceedings, report to the clerk of the court.
Bring with you the court order, your photo ID, the patient record, and your notes. Bring a good book to read in case you have a long wait.
You will be advised (again) if you are required that day. If you are not required, the clerk will make a notation on your court order to appear that you attended and that you have been dismissed. Keep this in your business records with the patient record.
If your testimony and the patient records are required, you will be called as a witness during the court proceeding.
You will be asked to swear or affirm an oath to speak honestly during your testimony.
Typical questions that you should be prepared to answer include:
- Your name.
- Your role at the clinic, how long you have been in that role, your routine tasks and responsibilities at the clinic.
- Describe how patient records are maintained. Be prepared to explain your EMR or computer patient management system (if you have one).
- Bring your notes about the steps that took to prepare for the court order. You may ask permission of the court to refer to your notes that you created when preparing to respond to the court order during your testimony, if necessary.
- Explain that the patient records are kept electronically and that you have prepared a paper print-out of those notes.
- Be prepared to explain how you know that the records are complete, not missing any details, etc.
- If the court asks you to enter the records into evidence, explain that you have an ‘original’ and a ‘copy’ and ask the court to accept the ‘copy’ into evidence.
When You Return to the Clinic
Complete your notes by documenting your day at the court. Write a short summary of your day including:
- Did you give a copy of the patient records to the court? To whom?
- Remember to add this notation to the patients’ record that you disclosed this information according to the court order.
- Any follow-up required for this disclosure?
- Review your procedures. Anything that you would edit or provide additional instructions that will help you to be better prepared for next time you receive a court order?
- Submit a copy of your out of pocket expenses (parking receipts, meals, etc.) for re-imbursement by your employer, if applicable.
What You Should Do Now
- Review your policies and procedures now to ensure that it includes how to respond to a court order.
- Train your reception staff on what to do if they receive a court order.
- Train your privacy officer and clinic manager on how to prepare a patient record for a court order.
Depending on where you work, you may receive a court order regularly or it might be a once-in-a-career experience. When you have policies and procedures and a little bit of training to assist you, you can respond to a court order calmly and confidently.
If you are a member of Practice Management Success, login and access the ’Procedure: Preparing Patient Records for a Court Order’ template and the replay of the tutorial video.
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What are you waiting for?
When we know better, we can do better…
Jean Eaton is constructively obsessive about privacy, confidentiality, and security especially when it comes to the handling of personal health information. If you would like to discuss how I can help your practice, just send me an email. I am here to help you.
Jean L. Eaton
Your Practical Privacy Coach