Members pose questions to AAP medical liability experts
Jonathan M.Fanaroff, M.D., J.D., FAAP
Pediatricians and the Law
AAP Fellows often send questions to the Committee on Medical Liability and Risk Management.
While the committee is unable to give specific legal advice, it can give some general
information that may be helpful. As always, it is important to recognize that laws
vary state-to-state, and legal decisions depend on the facts at hand. It is important
to consult a qualified attorney for legal issues affecting your practice.
Q: I’m caught between feuding divorced parents about who can consent to care and who
can obtain medical records. What’s the right thing to do?
A: With the divorce rate in the United States approaching 50%, this is a common issue
for pediatricians. When married, both parents generally have the right to consent
to medical care for their children, so the consent of either parent is sufficient.
Once divorced, however, the right to consent will be controlled by a court order or
state law. Sometimes, the joint custody agreement will specify that both parents need
to give consent.
The safest legal course for the pediatrician is to determine who has the right to
medical information and consent by specifically asking for a copy of any joint physical
or legal custody agreement. For more information, refer to the AAP clinical reports
Consent by Proxy for Nonurgent Pediatric Care (http://bit.ly/2vqKYcu) and Helping Children and Families Deal With Divorce and Separation (http://bit.ly/2O30Md0).
Q: Two of our employee pediatricians have decided to open their own practice down
the street. They think they are entitled to take their patients’ medical records when
they leave. Are they? Do we have any legal recourse to prevent them from setting up
a competing practice so close to ours?
A: This is a situation where it is important to obtain legal representation and advice
to determine your legal rights and responsibilities. Many employee contracts, for
example, have noncompete clauses, but states and courts vary in the degree to which
they will enforce them. Courts take a hard look at whether the noncompete is “reasonable”
as to the restricted length of time, geographic location and scope of activity.
State laws are relevant as well. Texas Business Commerce Code § 15.50, for example,
requires that a noncompete “not deny the physician access to a list of his patients
whom he had seen or treated within one year of termination of the contract or employment.”
To comply with federal and state privacy regulations, it may be necessary to obtain
a signed records release from the family prior to releasing medical records.
Q: What do you do when parents provide unfounded and harsh criticism of you and your
practice on social media? Should you respond? How do you protect your online reputation?
A: It is easy to feel hurt and want to respond to a parent’s criticism of you and
your practice on social media. However, it is important to recognize that the Health
Insurance Portability and Accountability Act (HIPAA) prohibits disclosure of any protected
health information (PHI). Even the fact that a particular person was a patient is
considered PHI and cannot be disclosed by the pediatrician without consent. It is
irrelevant to the Department of Health and Human Services, the federal agency responsible
for enforcing HIPAA, that the disclosure is in response to a publicly posted criticism
by the parent.
So how can one respond? According to “How Doctors Should Respond to Negative Online
Reviews” in Forbes (http://bit.ly/2Asl9OO) and “Getting great online reviews without violating HIPAA” in Medical Economics (http://bit.ly/2Kj4DQP), physicians should:
Figure out what happened.
Learn from the review.
Complain to review websites about fake reviews.
Encourage positive reviews.
Q: Our office has a policy that we do not release medical records to families leaving
our practice if they still owe us money. Someone told me this is not legal. Is it?
It doesn’t seem fair.
A: Practices should not withhold medical records from a family because of money owed.
First, it may be considered patient abandonment since a routine part of transferring
care to another physician involves transfer of medical records. Second, it may invite
a complaint to the state medical board. The Florida Board of Medicine, for example,
specifically states that “a physician may not hold records if the patient has not
paid for services rendered.”
Most states allow practices to charge a “reasonable” fee for copying records, and
many have laws that set the actual fee limit per page.
Email questions for future columns inAAP News to email@example.com.
Dr. Fanaroff is chair of the AAP Committee on Medical Liability and Risk Management.