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Plaintiffs have won malpractice cases when the defendant physician failed to obtain or review prior treatment records containing information, awareness of which might have prevented damage, but in my experience new treatment providers rarely contact me at all, much less request medical records.
Legally the patient owns the privilege, that is, the owner of the records must comply with the patient’s wishes regarding whether and to whom to send the record, so if I want a copy of a patient record, I must ultimately hold the patient, not the treater, responsible. I can ask, cajole, and demand, but ultimately I may have to discharge a patient who fails to provide records.
Practically, if I want all the records, the patient must contact each prior treatment provider, every hospital, psychiatrist, prescriber and psychotherapist, and demand that they send me a copy of the record. Each of these providers will likely require the patient to provide written, signed authorization. If the patient has an extensive history I will then potentially have to devote hours of uncompensated time to wading through these records. The process goes something like this:
- Compile a list of all providers.
- Contact each provider.
- Provide written authorization.
- Confirm receipt of each record.
- Follow up contacts when records do not arrive.
- Review each record.
- Add to the list of providers those found in the records but not recalled or mentioned by the patient.
So most of us practice in a kind of make-believe world in which we pay lip service to the necessity of obtaining records but rarely do. If we discharged all patients who failed to provide records, only new patients would obtain treatment. And if each of us actually reviewed all the records before providing treatment, we would have scant time to examine and treat the patient ourselves, and we could not afford to treat patients who provided more than a few records.
Let us admit that this emperor is naked.