One of the frequent questions we have in our practice is: I have received a request for a patient or client file from my licensing board, the government or an insurance company. What should I do?
One thing to remember is that every case is different and varies upon the facts. No one strategy works for each case. However, an experienced objective attorney can help you take it seriously without panicking and help prevent the complaint from turning into disciplinary charges or mitigating the problem.
Sometimes professionals turn it over to their office manager or secretary and later find that not all of the chart or file was copied, that an issue that was apparent (such as missing operative reports or other records) was not addressed, and did not think about having an expert look at the chart. Often if notes are not legible or there is a lengthy history, we will advise clients to prepare a summary of the chart and the treatment at the time the file is submitted.
One thing to remember is that if you have received this request it means that there is a complaint and that an investigation is open. This is the time to be the most proactive. The earlier you can prevent an investigation from going forward, the better. Once an Accusation or disciplinary charge is filed or a referral is made to the Special Investigations Unit, it is difficult to unwind it. We find that often administrative or criminal charges were filed or an insurance company issues a sanction because the professional did not adequately address the investigation at an early stage.
One important piece of advice: do not simply produce the file and nothing else. Here are some of the things, among many, that can be done at this early stage:
1. Take the opportunity to ensure the requesting entity (board, insurance company or governmental agency) has full access to all relevant information.
2. If there were problems with this particular client or patient, a letter or memorandum summarizing the history, facts and issues will help the investigator evaluate the case. Have an experienced attorney, expert or other objective party review any submissions since you will have to live with them for several years if the case is investigated further and/or is the subject of disciplinary or criminal proceedings. Remember that everything you do is evidence.
3. If there is significant handwriting in the file, dictate the notes and have them transcribed so the handwriting is easy to read. Have your attorney or other objective party ensure that the records are easy to understand.
4. If this case had a bad or poor outcome (even if that is part of the risk that was disclosed to the client or patient), it may be useful to have your attorney hire an expert and evaluate the file in order to help prepare a thorough response explaining the case or matter.
5. The Board, insurance company or governmental agency can be contacted to determine what stage the investigation is at so that the appropriate response. This is often easier for your attorney to do since the investigator may be open with him or her. In addition, anything you say is evidence and even impromptu comments like "I didn't do anything wrong" or "I don't remember this person" can be used against you later in ways that are difficult to anticipate when they are said.
6. Do not alter, backdate or create any records unless such records are properly created and dated. This can lead to professional misconduct charges and can lead to obstruction of justice charges.
7. As mentioned above, make sure the entire file is copied. If there are any missing records, handle it now and conduct a thorough and diligent search. I have seen cases proceed to the interview stage because the file appeared to be deficient and below the standard of care simply because there were missing records.
8. Once you hire an attorney, have him or her send a letter of representation so the
Board contacts the attorney and does not show up at your office for an impromptu interview. Be prepared on how you and your staff can politely decline requests for interviews without your attorney present.
9. Be prepared for any interviews. It is key to be prepared and treat it as if you were testifying in court. Lack of preparation hurts in many ways since they are recorded. Sometimes it may be decided that there should be no interview
10. You should also look into whether your malpractice coverage will cover the cost of the attorney. Do not fear that your premiums will go up because insurance carriers prefer that things be handled professionally from the beginning because it prevents malpractice or other cases. Missing documentation in charts, failure to produce entire charts and failure to explain issues early on or obtain expert help can make things worse.
11. Think about whether this case merits hiring an expert at an early stage. At a minimum, it may make sense to have at least another professional in the same field to review the chart in an objective to see if they spot any issues that you and the attorney may be missing.
12. If there are issues that you see, think about whether a compliance or corrective action plan should be started. Think about whether further education is needed (such as continuing education) in the area at issue including record keeping classes. The Boards want to see that the professionals can spot these issues and fix their own mistakes. This is mitigating and rehabilitative evidence.
This is simply a starting point and it is critical to treat each case differently and not in a cookie cutter manner. In cases where there are fraud or other issues that could be the basis of criminal charges, they may be handled somewhat differently but it is key to address it early.
If you want advice from our law firm, feel free to contact us or seek the advice of experienced counsel at the earliest opportunity.
Posted by Tracy Green, Esq.
Green and Associates, Attorneys at Law
Phone: 213-233-2260
Email: tgreen@greenassoc.com
Website: www.greenassoc.com
