Risk Management Helpline Experiences
In the August 2016 Tip-of-the-Month article, the content referenced a landmark 1957 U.S. legal decision that merged the word “consent” with the term “informed consent” whereby medical professionals have a duty to disclose any facts which are necessary to form the basis of intelligent consent by the patient to proposed treatment. This means that the facts, risks, and benefits of treatment, interaction, and alternatives are disclosed. The key mode of practice as decided by the court is that the patient must be allowed the opportunity to evaluate options, risks, and benefits in order to make an informed and independent choice.
This article takes a different, yet related view. We share some experiential feedback from the NASW Risk Retention Group (“RRG”), Helpline. As a free service for RRG policyholders, the RRG Helpline is available for questions regarding a variety of practice interactions, risk mitigation, and general guidance. RRG policyholders rely on the RRG’s Helpline for legal guidance which helps practitioners mitigate risk and deliver better services to their respective practice models. The most frequent categories of Helpline questions fall within the following categories:
- Deceased Clients,
- Release of Information
- Board Complaints.
If a judge doesn’t sign the subpoena, it’s not valid, right? So I don’t have to show up to court? Wrong. Subpoenas are rarely signed by a judge, usually, they are signed by the Clerk of Court, or by the attorney as an officer of the court. If you do not appear as directed in the subpoena, you could be found in contempt of court which could result in a fine or jail time.
What do I have to bring to the deposition or to court? Bring whatever the subpoena tells you to bring. Most often that will be your entire file on the client in question. Be careful what you do with the digital file or the paper file. If you have a third party storing the client file information and a breach occurs, you will be prosecuted under the HIPAA HITECH 45 CFR part 160 which holds you liable for a client information security breach. In cases like this, a Cyber Liability product will insure your risk from these incidents.
You told your client you wouldn’t be involved in any court proceedings but you got a subpoena anyway. You don’t have to appear, right? Wrong. You have to appear. A subpoena is a court order, and you must do what it says.
Do you have to produce your chart? If the subpoena directs you to, then yes. However, if you believe that releasing the chart would not be in your client’s best interest, you need to receive legal advice. For example, in a child custody case, if the child has made statements against one parent that could cause that parent to punish the child, or damage the reputation of a divorcing spouse, you should ask for attorney assistance to have portions of the chart redacted, or reviewed in-camera by the judge in the matter for a final ruling
Your client committed suicide. Can you go to the funeral? If you believe that there will be hard feelings from the family because they believe that you failed to prevent the client from suicide, it may disturb them during their grieving process if they see you at the funeral. Perhaps an informal telephone call to one or more of the client’s family members well before the funeral to assess prospective action will provide you with signals and clarification for prospective action.
Your client passed away unexpectedly, and now his mother called and wants to talk to you. Should you call her back? No. HIPAA privacy survives death, and unless you have a release from the client to speak to his mother prior to his death, you cannot talk to her now. The only person you can legally talk to is the personal representative of the deceased client’s estate and that person can sign a release for you to speak to anyone and to release a copy of your chart if requested. Make sure that you get a copy of the court order appointing that person as personal representative of the estate.
Your client committed suicide over the weekend and your boss wants you to call the family and find out what happened. Should you? No. Again, HIPAA privacy survives death. You cannot talk to anyone without a release and the family probably does not want to talk to you right now. Wait for them to come to you and use the same rule as above. Only a person you consent to talk to but, again, the personal representative is better.
Release for Information
You got a release for records from your client’s attorney. Now, what should you do?
It is worth a phone call to the client to make sure that they understand if you release their records then all of their information is going to be available. You do have the option to prepare a high-level summary of your care and treatment (date treatment started, how often, general topics of discussion during sessions) and include your intake form if you want, but be prepared for the attorney to come back and say that is not enough information and they want the entire client file. If your client agrees, then release the records.
Can you bill for preparing the records to send out? Each state has statutes concerning medical records and the appropriate amount of billing. You can only bill according to those statutes. However, you cannot withhold the copy of the records if the client cannot pay, or is behind on their payments to you. They are entitled to a copy of their chart regardless of their financial status with you.
You got a letter from the Licensing Board in your state. Now, what? You certainly can answer the complaint on your own, but that is not advisable. You may inadvertently get yourself into more trouble by stating something you did not intend to say or that is interpreted incorrectly. If you are an RRG policyholder, you should contact the RRG Helpline immediately and ask for an Incident Report Form and send the Board letter with the form as directed by the RRG which shall assign a licensed attorney in your state for your defense. If you are not a policyholder with the RRG, you should contact an attorney.
Your former client is angry with you and is threatening to file a complaint against you. Is there anything you can do to stop it? No. People have a right to file a complaint against you if they feel you hurt them in some way. As noted above, you can either answer the complaint yourself or, if you are an RRG policyholder, contact the RRG Helpline to arrange for legal counsel to be assigned to you. In the meantime, do not agonize over what has not happened yet. Prospectively consider the facts as they arrive in the board complaint.
In closing, you should make sure you have adequate liability insurance to protect yourself against these types of cases. If you are a policyholder of the NASW RRG, you shall be protected if you own an NASW RRG Professional Liability, Cyber Liability, and a General Liability policy.
Published September 2016