During the course of a year, the attorneys at Fager Amsler Keller & Schoppmann, LLP, counsel to MLMIC Insurance Company, handle approximately 5,000 questions from policyholders on professional liability, risk management and healthcare law. Frequently, the questions asked by healthcare professionals involve requests for legal guidance on handling requests from attorneys.
Here, we’ve paired the FAQs on medical professional liability related to informed consent with the attorneys’ responses.
If a patient signs an authorization solely for release of his/her records, am I at liberty to speak to his/her attorney or to the defense counsel?
One area of concern for physicians and their attorneys involves requests from patients’ attorneys for records, especially when the reason for the request is not made clear. On occasion you may receive a call from an attorney requesting an appointment to discuss your care of a patient or to have you interpret your notes in the patient’s medical record, which the attorney already has in his possession. Even if the attorney assures you that you will not be sued or that your conversation is off the record, exercise caution and immediately contact your own attorney before agreeing to speak with him/her. Frequently, these statements are simply not true.
Further, it should be noted that an authorization to release records requires only that you release the patient’s records. It does not sanction discussion with any attorney. If an attorney wishes to question you about a patient’s care, the appropriate place to do so is at an Examination Before Trial (EBT) or deposition, where you may have counsel present for your protection.
If you have been retained to be an expert witness for a plaintiff ’s attorney, you should request a specific and HIPAA compliant release from the patient, which will permit you to discuss all aspects of his/her care, treatment, diagnosis and prognosis with that attorney.
If a patient’s attorney asks me to provide a narrative summary of my care or sends me written questions for my response, must I agree to do so?
No, the best way to handle such a request is to obtain from the patient a properly signed and dated authorization allowing the attorney making the request to obtain access to the patient’s medical information. You should advise the attorney that your records speak for themselves. In addition, you are not obligated to be an expert witness for a patient you have not treated.
The attorneys of Fager Amsler Keller & Schoppmann, LLP (FAKS) perform thousands of hours of professional liability services per year. They are uniquely qualified to assess medical-legal issues and provide counsel to minimize liability exposure. MLMIC policyholders can reach 24/7 legal support services by calling (855) FAKS-LAW or emailing hotline@FAKSLAW.com. For more information about these services, offered exclusively to MLMIC policyholders, visit our web page on Legal 24/7.