Frequently Asked Questions
Have a risk question or concern? Submit a question to our risk manager. Your question will be answered personally and it may be added to the site to assist others.
The information provided in this Frequently Asked Questions is not legal advice. While we do our best to keep this information current, the law does change rapidly and these responses may become outdated. Anyone using these materials should always research original sources of authority and update this information to insure accuracy when dealing with a specific matter. You should always consult your own legal counsel for specific advice.
- How long should I keep medical records?
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There is no West Virginia statutory time period for records retention. However, there are varying statutes of limitations for malpractice actions which can run up to 20 years that should be taken into consideration for records retention. It is recommended to store inactive records where they can be accessed for a 20 year period.
Some physicians practicing in specialties which do not involve the treatment of minors or those under a disability (insanity) might be able to safely dispose of records sooner than 20 years. Additionally, claims may be more likely to become evident sooner in some specialties than others. If you practice in a specialty in which all problems should become evident within, for instance, 10 years ( and, assuming no minors or insane patients), then records may not have to be kept longer than that. The risk is that a claim could still arise after that period and no record of your treatment may exist to support the defense of your care.
- Can I leave messages on a patient’s answering machine at home? What about work?
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Yes; provided you have the patient’s permission. See our Tools section for a sample communications consent form. The permission should include whether the patient is granting permission to leave a message on an answering machine or voice mail, whether permission has been granted to leave a message with a person who answers the phone and whether permission has been granted to leave a message at the workplace. You should limit the amount of information disclosed to leaving your name and request that the patient return your call. You should be aware that phone messages left at work may not be confidential.
- Can I fax patient information and if so, what precautions should be taken?
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The above response includes the cautions that should be applied to faxes. Sensitive information regarding sexually transmitted diseases, HIV AIDS, drug or alcohol abuse and mental health information should never be faxed.
- Who is financially responsible when a minor requests care and treatment?
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Generally, the parent or guardian is financially responsible for treatment of those under 18 years of age.
If the minor is over the age of 16 and has been declared emancipated according to W.Va. Code 49-7-27, and has the authority to consent to treatment, then the minor is generally financially responsible for the cost of treatment. This would apply also for a child over the age of 16 years who marries and is emancipated by operation of the law.
If a minor is not emancipated and requests treatment be paid for under a parent’s health care insurance, the minor should be advised that the parent will be informed of their care when the parents receive the Explanation of Benefits from the insurance provider.
- Am I making an admission of negligence if I express sympathy or apologize to the patient (or the family of the patient) after an unexpected outcome.
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No. West Virginia law provides that a statement of empathy or apology will not be admissible as evidence of an admission of liability.
WVMIC has developed the C.A.R.E. Program, which provides support and coaching for the physician to be able to express empathy and apologize to the patient for experiencing a bad outcome. Click here to learn more about this innovative program.
- Am I making an admission of negligence if I agree to reduce a patient’s bill due to an unexpected outcome?
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This issue has not been tested in the West Virginia Courts. It is arguable that the Open Communications Legislation (§55-7 - 11A) provides protection against admissibility if the write-off or bill reduction is considered a “gesture.”
If there has been no medical malpractice claim and you want to evaluate this issue, you should contact our Risk Management Department. If a medical malpractice claim has been made, you should contact your assigned defense attorney to evaluate the issue.
- Can a nurse or office assistant ask the patient to sign an informed consent before the physician discusses the treatment or procedure?
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No, it is the physician’s responsibility to have a talk with the patient that includes a discussion of risks, benefits and alternatives of a proposed treatment or procedure. The informed consent is a process, not a signature on a document. Once this has been done, the task of actually obtaining a signature on a form can be delegated. The process of the discussion by and between the physician and the patient should also be documented in the medical record.
- Is it illegal to have a patient sign a consent for treatment after services are rendered?
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It is not illegal, but it is not effective either. A person can only consent to something before it happens. In medicine, there is no retroactive consent.
- I know you need informed consent for hospital procedures, but does the same hold true for procedures done in the office? Will it make a difference if the patient requested the procedure?
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You should always obtain consent for any procedure. This involves a discussion of the risk, benefits and alternatives. It doesn’t matter if the patient initiated the request for the procedure. If you do not have a document or form that is appropriate for consent for a specific procedure, it is acceptable and advisable to document the conversation in the medical record.
- I am a physician who has contracted with several PPOs and HMOs to provide health care to their patients. At what point does such a managed care patient become my patient?
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Generally, the doctor-patient relationship is not formed until the doctor actually provides care for the patient. However, you should be aware that some hospital call arrangements or ER practices may create an expectation that a person you have not yet examined may be considered "your patient". It is possible for a managed care contract to commit you to care for a certain panel of patients. You should review your contract to determine contractual obligations related to patient relationships. There may be language in the contract that references or defines when the physician-patient relationship begins.
- I had a post-surgical patient sign himself out of the hospital against medical advice. Should I call the patient to be seen in my office for a post-operative visit? Am I still responsible for his care?
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A physician has an ongoing duty of care, even when the patient is noncompliant, until such time as the patient is discharged from the practice.
- What is West Virginia’s law regarding access to a child’s record?
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West Virginia State Law (West Virginia Code §48-9-601. Access to a child’s records.) states:
(b)(1) Each parent has full and equal access to a child's medical records absent a court order to the contrary. Neither parent may veto the access requested by the other parent. If necessary, either parent is required to authorize medical providers to release to the other parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to either parent.
(2) If the child is in the actual physical custody of one parent, that parent is required to promptly inform the other parent of any illness of the child which requires medical attention.
(3) Each parent is required to consult with the other parent prior to any elective surgery being performed on the child, and in the event emergency medical procedures are undertaken for the child which require the parental consent of either parent, if time permits, the other parent shall be consulted, or if time does not permit such consultation, the other parent shall be promptly informed of the emergency medical procedures: Provided, That nothing contained herein alters or amends the law of this state as it otherwise pertains to physicians or health care facilities obtaining parental consent prior to providing medical care or performing medical procedures.
- What is the Federal Trade Commision's (FTC) Red Flags Rule?
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The Red Flags Rule is a Federal rule promulgated by the FTC that essentially requires healthcare providers to implement policies and procedures designed to identify, detect, and respond to Identity Theft. The enforcement deadline, which was June 1, 2010, has been moved to December 31, 2010 (http://www.ftc.gov/opa/2010/05/redflags.shtm). For additional information about how this rule effects providers, go to http://ftc.gov/redflagsrule, http://www.ftc.gov/bcp/edu/pubs/articles/art11.shtml or contact the Mutual(harmon@wvmic.com).