Legal Considerations Concerning Patient Medical Records

I. The Value of Creating and Maintaining Veterinary Medical Records

1. The creation and proper maintenance of veterinary medical records play a critical role in providing quality
2. veterinary medical care to patients. Maintaining accurate and legible medical records are a key in meeting the following objectives:

1. Reflecting an accurate record of the care currently being provided.
2. Reflecting an accurate record of past care.
3. Meeting the applicable requirements of state veterinary disciplinary boards.

3. With the increased use of specialty referral services in equine veterinary medical practice, a complete and accurate veterinary medical record better enables a referral veterinarian in properly assessing the patient's condition and providing the proper treatment.
4. An accurate and complete veterinary medical record also can be used to facilitate the resolution of client disputes by demonstrating what was done and when it was done.
5. Finally, in current society, where higher expectations are being placed on veterinarians for accurately diagnosing and treating animal medical conditions, the need for legible and accurate veterinary medical records cannot be understated.

1. Veterinary licensing boards, clients, and their counsel, often follow the rule of thumb that if a procedure or task is not recorded in the record, then it was not performed.
2. It is far more difficult to prove a fact based solely on memory in the face of contradictory oral testimony than it is with the support of written records created at the time the action was performed.

II. Common Issues Concerning Veterinary Medical Records

1. Recommended Content

1. Minimum recommended content (See Table 1).
2. Considerations of potential computerized record programs should include the extent to which the program can record and retrieve this information.

2. Data Entry

1. Be accurate.
2. Be as comprehensive as possible.
3. Avoid leaving blanks on pre-printed forms. If an entry is not required in connection with a given procedure, provide "N/A" or strike through the item in its entirety to indicate that it is not applicable to the given circumstance. Regulatory bodies and plaintiff's attorneys often follow the rule: "Not documented, not done".
4. Avoid editorial and/or derogatory remarks in the record. Educate and train staff in this principle as well. Follow the rule of thumb: Don't write it unless you are willing to let the client or a jury see it.
5. Use good judgment when dealing with erroneous entries. Correct errors by drawing a single line through the erroneous entry, designating the entry as an "error", dating the corrections and initialing the entry.
6. Keep on hand a record of persons' names associated with their signatures and initials. This will facilitate the ability to identify the author of the entry.

3. Record Storage/Retention Periods

1. Many state practice acts define the period of time that veterinary medical records should be retained. In addition, veterinarians should consider the statute of limitations periods for various claims that may be brought against them.
2. Contract statute of limitations

1. Unwritten or implied contracts: 3 - 6 years, according to the state.
   i. Many veterinary malpractice claims using a breach of contract theory are based on implied contract principles.
2. Written contracts: can be up to 10 years or more, according to the state.

3. Statute of limitations for human injury: Wide variety but many are within the following range:

1. Minors: 2 years after 18th birthday.
2. Adults: 1 to 4 years after injury.

4. Where appropriate, veterinarians should consider retaining veterinary medical records for the minimum time required to fulfill all applicable statute of limitations periods plus one to two years.

4. Confidentiality of Veterinary Medical Records

1. Maintaining client confidences has long been an ethical duty of veterinarians (See Principles of Veterinary Medical Ethics of the AVMA, see also AAEP's Principles of Veterinary Medical Ethics)
2. In Florida, Texas, and other states, state practice acts often codify this concept.

1. State veterinary practice acts often provide that a veterinarian need not disclose any information concerning the veterinarian's care of an animal, except as follows:
   i. On written authorization or other waiver by the veterinarian's client; or
   ii. On appropriate court order or subpoena.
2. These statutes/rules often further provide that the veterinarian is immune from liability for disclosing client information if released according to the procedures listed above.
3. If the client places the animal's condition at issue, such as in a malpractice case, the obligation of confidentiality is deemed to be waived, and the veterinarian can release the information, although such release should be made only for the purpose of assisting the veterinarian in defending any claims filed on account of care provided to the animal.
4. The Illinois statute further provides that the privilege is waived whenever "communicable disease laws, cruelty to animal laws, or laws providing for public health and safety are involved".

3. Other states' veterinary disciplinary boards have imposed similar restrictions regarding the confidentiality of client medical records. See, e.g., 18 Va. Admin. Code §150-20-140. 4 (prohibits veterinarians from revealing "confidences gained in the course of providing veterinary services to a client, unless required by law or necessary to protect the health, safety or welfare of other persons or animals".)

5. Responding to Client Requests for Medical Records

1. Best to provide copies on request. NEVER SUBMIT ORIGINALS UNLESS IT IS NECESSARY FOR THE CARE AND TREATMENT OF THE CLIENT'S ANIMAL.
2. Likewise, provide COPIES of radiographs, not originals. If you do not have the ability to make copies at your clinic, most human hospitals and referral veterinary clinics have the capability to make copies of radiographs for you. Contact your local hospital or referral veterinary clinic to determine if you could arrange for them to provide copies of x-rays. Costs of copies are usually reasonable, and can often be passed on to the client.
3. Do not refuse a client's request for a COPY of an animal's records for a client's failure to pay his or her bill.

1. Failure to provide the client with a copy of the animal's medical records can initiate a claim for malpractice or more importantly, a complaint with the state disciplinary board.
2. When faced with a non-paying owner, you are better advised to seek relief by bringing a collection action or holding the animal pursuant to an agister's lien.

III. Issues Concerning Computerized Medical Records

1. Admissibility of Computerized Medical Records

1. Most, if not all, courts now will admit computerized medical records into evidence, provided the following assurances can be shown:

1. An effective security system is in place to limit access to the records, and hence, minimize the risk of unauthorized alteration of the records.
2. A system exists to reflect any after-the-fact corrections made to the medical record.
3. A reliable method exists to prevent alteration of medical records by unauthorized persons.

2. Selection of Computerized Medical Recordkeeping Programs
3. When evaluating medical recordkeeping software, look for the following features:

1. A date and time data entry system.
2. Security measures that restrict access to unauthorized users and/or provide a tiered system for authorizing who may make a given entry or alter an entry.
3. A workable mechanism to permit and identify authorized alterations to the medical record.

IV. Selected Regulatory Mandates Regarding Veterinary Medical Recordkeeping

1. Florida

1. Florida's definition of the veterinarian/client/patient relationship requires veterinarians to maintain "records which document patient visits, diagnosis, treatment, and other relevant information required" by the Florida veterinary practice act. 32 Fla. Stat. §474. 214(1)(y). (3)
2. Florida's veterinary practice act also provides that veterinarians may be disciplined for failing to keep "contemporaneously written medical records" or failing to "maintain accurate records or reports. pertaining to the storing, labeling, selling, dispensing, prescribing, and administering of controlled substances". 32 Fla. Stats. §§474. 214(1) (ee) & 474. 214(1)(mm).
3. Florida's veterinary practice act provides rather specific requirements regarding the ownership of veterinary medical records and the provision of copies that may be requested from time to time. See, e.g., Fla. Stat. §474. 2165.

1. For example, Florida's veterinary practice act provides that veterinary medical records are owned by the veterinarian who generates the record, a transferee of such records and/or the veterinarian's employer, provided that the veterinarian's employment contract designates the employer as the owner of the record.
2. Florida's veterinary practice act also requires veterinarians to provide a copy of a patient's veterinary medical record (including copies of radiographs) in response to a request from a client or the client's legal representative. Fla. Stat. §474. 2165. (3) Such a request may not be refused or conditioned on the client paying any unpaid balance for services previously rendered. Id. The fee for providing a copy of such records may not exceed the actual cost of copying the record (including any reasonable staff time expended in making the copies). Fla. Stat. §474. 2165(11)

2. Kentucky

1. Kentucky's veterinary practice act, like Florida's, recognizes the existence of the veterinarian/client/patient relationship and requires veterinarians to maintain records which "document patient visits, diagnosis, treatment, and other relevant information." Ky. Rev. Stat. §321. 185. (2)
2. Kentucky's Board of Veterinary Examiners has adopted a code of ethical conduct, which requires veterinarians, among other things, to "keep adequate and sufficient records of the examination and treatment of all patients for a period of five (5) years after the last examination of the patient". 201 Ky. Admin. Rules §16:010. (10)

3. Texas

1. Licensed veterinarians are required to maintain records pertaining to the purchase, maintenance, administration and dispensing of controlled substances. Tex. Occup. Code §801. 359 (requirement to maintain controlled substance records) and §801. 404 (allows board to impose a penalty for failing to maintain controlled substance records)
2. Rules impose specific requirements regarding the content of patient medical records.

1. Name and address of client
2. Patient identity
3. Patient history
4. Dates of visits
5. Immunization records
6. Actual or estimated weight, if required for diagnosis or treatment
7. Temperature, if required for diagnosis or treatment, unless dealing with a herd.
8. Laboratory analyses
9. Radiographs
10. Information pertaining to drugs administered or dispensed
11. Other details necessary to substantiate the examination, diagnosis, and treatment provided, and/or surgical procedure performed
12. Any signed acknowledgments required by Texas law pertaining to the use of alternative or nonstandard therapies. 22 Tex. Admin. Code §573. 52(a).

3. Rules also provide that medical records are the property of the veterinarian or veterinarians who own the veterinary practice, but also provide that clients are entitled to receive a copy of the patient's veterinary medical record (including copies of any radiographs requested). 22 Tex. Admin. Code §573. 52(b).
4. The Texas rules also require veterinarians to provide a requested copy of medical records within 15 business days of the request, unless a longer period is reasonably required to duplicate the records. 22 Tex. Admin. Code §573. 52(c).
5. Veterinarians may charge a reasonable fee for providing requested copies of veterinary medical records, including charging for the actual costs for mailing, shipping or delivering the records. 22 Tex. Admin. Code §573. 52(c).
6. Veterinarians may not refuse a request for copies of a patient's veterinary medical record because payment in full for veterinary care has not been received from the client. 22 Tex. Admin. Code §573. 52(c).
7. Texas rules also require that veterinarians record and maintain in the patient's veterinary medical record a signed acknowledgement by the animal's owner or caretaker that any acupuncture therapy, holistic medicine, homeopathy, chiropractic or other form of musculoskeletal manipulation ("MSM") that have been applied or administered to the patient are considered under Texas law to be alternate or nonstandard therapies. 22 Tex. Admin. Code §§573. 12(b) (1)(C) (chiropractic and MSM), 573. 14(c) (acupuncture), 573. 15(c) (holistic medicine), & 573. 16(c) (homeopathy).

4. Virginia

1. Virginia's regulations under its veterinary practice act require medical records to be maintained at the permitted facility. 18 Va. Admin. Code §150-20-195. A.
2. Virginia's regulations also require that medical records contain "pertinent medical data such as drugs administered, dispensed or prescribed, and all relevant medical and surgical procedures performed". 18 Va. Admin. Code §150-20-195. A.
3. Virginia's regulations provide, in general, that medical records must be kept for each animal, except in the case of "economic animals". 18 Va. Admin. Code §150-20-195. B.
4. Virginia's regulations also require that veterinary medical records be maintained for a period of three years after the last office visit or the date the animal is discharged from the veterinary facility. 18 Va. Admin. Code §150-20-195. B.
5. Virginia's regulations provide that veterinary practices must use an animal identification system. 18 Va. Admin. Code §150-20-195. C.
6. Finally, Virginia's regulations require that radiographs (or a record that the radiograph has been transferred to another veterinarian or client) be maintained as a part of an animal's medical record. 18 Va. Admin. Code §150-20-200. A. 3. c.