Ericka L. Adler

Most of my communication with physician clients is conducted via e-mail. And yet, as a patient, I have never communicated with any physician in this manner. Why is this?

The use of e-mail is said to offer numerous benefits to physicians, such as an increase in efficiency and productivity. E-mailing is often faster, easier, and can be written and reviewed at the convenience of both parties, so as to cause less interruption and distraction to physicians during the work day. Additionally, e-mails are great documentation for future reference and can be printed and placed in the patient chart. E-mails can effectively be used for communicating test results, reminding patients of appointments, making appointments, prescribing medications, and, in some cases, following up on treatments and patient wellness. When used properly, electronic communication can free up valuable physician and staff time and decrease the need for in-person appointments and phone consultations.

Like anything in healthcare, however, there are always some restrictions and concerns. When it comes to e-mail, I typically warn my clients of the following:

1. E-mail should not be used for emergencies.

 You should set a maximum response time (i.e., 48 hours) that you will be able to meet and let patients know ahead of time. Patients should also know that the e-mail may be reviewed by others in your office in order to achieve the fastest response.

2. Limit e-mail use to situations you are prepared to handle.

 If you want to refill prescriptions but not give medical advice via e-mail, that is your decision. Make this policy known to your patients and do not make any exceptions.

3. Make sure patients know what security measures

 you have taken with your e-mail system and that you are not responsible if they choose to allow access to their e-mail account by a third party.

4. Don’t use your personal e-mail address.

 Set up an address that can be discontinued should the e-mail “experiment” not work. Consider a trial e-mail period to see whether e-mail is an advantage or disadvantage for your practice.

. If you do not want to give advice, limit your e-mail conversations to non-diagnosis related advice such as referrals to specialists, clarifying statements you made to patients, or answering general questions. When patients are seeking medical advice for a condition that has not been examined in person, always have them schedule an appointment. Be aware of the laws in your state and malpractice risk that may be created by unclear or untimely advice on which a patient relies.

6. Consider whether access to e-mail is something for which you should charge patients.

 You may not be reimbursed for time spent e-mailing with patients, and establishing a safe e-mail system may be expensive. If you choose to charge patients, consult with legal counsel to make sure you are not violating any laws or payer contracts.

7. Consider whether your e-mails should contain a disclaimer.

 I have a client who provided e-mail advice to a patient one Friday evening who complained of flu-like symptoms. My client recommended fluids, rest, etc., and to come in for an appointment on Monday if he did not feel better. The patient’s condition worsened and he died over the weekend. At no time did the patient contact the physician again or go the emergency room, relying instead on the e-mail. Whether reasonable or not, patients often blindly follow a physician’s advice. Although liability can never be avoided completely, a disclaimer on your e-mails that reminds patients they cannot rely on e-mail advice without an exam might help. In addition, the disclaimer should remind patients to make an appointment or to go to the emergency room if symptoms persist or worsen. Legal counsel can help you draft something appropriate for your needs.

Although I cannot cover all of the benefits and risks of using e-mail in this blog, I do recommend careful consideration when introducing e-mail to your practice. Make sure you develop a written policy for how access to e-mail will work in your practice and have such policy acknowledged by participating patients before you push that “send” button.

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When it comes to e-mail, I typically warn my [physician] clients of the following.

E-mailing With Patients: Think Before You ‘Send’

Several times a month I receive calls from physicians related to medical record management. Of particular concern is when and how to disclose patient health records. Consider the following statements which many practices assume, incorrectly, to be true:

1. A noncustodial parent has no right to access a minor’s record. False.


It’s never fun to be in the middle of a pediatric office “divorce war” between a noncustodial parent who wants copies of medical records, and a custodial parent who wants to prevent such a request. Unless a court order dictates otherwise (or there is some state-specific law on the issue) a noncustodial parent still maintains parental rights allowing access to the child’s records.



2. Physicians do not have to provide patients access to their entire medical record. False (with exceptions). 


Typically, a patient is entitled to access the entire contents of his medical record, including the physician’s notes, lab and test results, and notes from other physicians. This includes the physician’s progress notes, which must be provided as part of the medical record. Physicians have some discretion to not disclose certain mental health or other records if they believe the disclosure may be harmful to the patient or another. Additionally, some test results may be subject to state-specific or other federal laws regarding disclosure (i.e., HIV tests or those rolated to substance abuse/treatment).



HIPAA always controls disclosure of records. False. 


HIPAA details a patient’s right to receive his or her medical records. In addition, most, if not all states maintain laws regarding disclosure of medical records. In the event HIPAA and state law conflict, HIPAA generally controls. If state law addresses an issue on which HIPAA is silent or does not conflict, physicians must comply with state law.



4. Physicians are not required to provide patients directly with a copy of their medical records. False. 


I spoke to a physician who routinely refused to provide medical records directly to patients out of concern that the records could be used in malpractice lawsuits. Guess what? The physician was sued for failing to provide patients with copies of their medical records! Unless otherwise limited by law, a patient is entitled to a copy of his or her medical record and a physician may not refuse to provide the record directly to the patient in favor of forwarding to another provider.



Physicians can charge patients a flat fee for medical records. False. 


This is one tradition that routinely gets physicians in trouble. Some states allow physicians to charge “handling” fees for medical records. HIPAA allows providers to charge a reasonable, cost-based fee for medical records (i.e., labor and supply costs of copying and postage), with a state’s per-page copy charge considered presumptively “reasonable.” HIPAA, which trumps state law, does not allow charging a “handling” fee for processing or retrieving medical records. 



6. Record requests can be honored without a patient’s signature. Sometimes False. 


HIPAA generally allows for disclosure of medical records for “treatment, payment, or healthcare operations” absent a written request. However, most state laws require record requests to be in writing and signed by the patient. I recommend you always obtain a signed, written release in a nonemergency situation, whether required by law or not.



Record requests can be refused if the patient owes money to the practice. False.


There is no legal basis for refusing to turn over a patient’s medical record because he owes money to the practice. Every patient has the right to access his medical records under federal and most state laws. The only money that can be required are the copying fees mandated by law.

While keeping and transferring medical records is often routine, it’s not always done properly by physician practices. If you have been in practice for a while and have not reviewed your forms or policies lately, I recommend you do so. If you obtained your practice’s forms free online or from a friend and never thought about whether they were actually legally compliant, I suggest you review them to see whether they create, or protect, your practice from liability. If you have questions, consult a healthcare lawyer who can guide you accordingly.

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Releasing Medical Records to Patients: Fact vs. Fiction

Author | Ericka L. Adler

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