1) Subpoenas
The medical records may be subpoenaed and/or the physician and health care provider (subpoena ducestecum) may be subpoenaed to testify in court. The subpoena is a court order naming a specific date, time, and reason to appear. The staff in the ambulatory care setting usually will have ample time to make certain the record is current and complete prior to its inclusion in court. Out of courtesy, the physician will notify patients whose records have been subpoenaed. If, for any reason, the patient does not want the record released, the physician must call for legal advice on how to respond to the subpoena.
Certain records, because of their sensitive nature, may require more than a subpoena to be released. These include records related to sexually transmitted diseases, including AIDS and HIV testing, mental health records, substance abuse records, and sexual assault records. For the courts to have access to these records, a court order is required in some states.
2) Confidentiality
The care taken with subpoenas and court orders for certain information is to assure patients of confidentiality. The information in the medical record, including the information a patient shared with the physician and medical assistant, is private.
No patient information can be given to another (another physician, patient's attorney, insurance company, federal or state agency) without the expressed written consent of the patient. Care must be exercised at all times to ensure that the patient's right to confidentiality is not breached. For example, information given to unauthorized personnel associated with the physician's or clinic's practice in regard to the patient's condition or financial status regarding payment of bills violates the patient's right to confidentiality. Likewise, when discussing issues over the telephone that can be overheardsuch as the patient's account being turned over to a collection agencythe patient's right to confidentiality has been violated. There are certain disclosures of information about a patient's conditions and suspected illnesses that are required by law. Legally required disclosures are necessary when the public needs to know certain information for its safety and welfare. The disclosures supersede the patient's right to privacy and confidentiality. See ''Public Duties" in this chapter.
3) Statute of Limitations
No discussion of medical records is complete without a brief statement regarding the statute of limitations which will, in part, determine how long medical records are kept. Generally speaking, all records should be retained until after the statute has run, usually three to six years. Statutes of limitations most commonly begin at the time a negligent act was committed, when the act was discovered, or when the care of the patient and the patient-physician relationship ended. It is easy to understand why many physicians choose to keep their records indefinitely.
State and federal statutes set maximum time periods during which certain actions can be brought or rights enforced; there is a time limit for individuals to initiate legal action. The statute of limitations varies from one jurisdiction to another and a lawsuit may not be brought after the statute of limitations has run. For example, in the Commonwealth of Massachusetts, the statute of limitations for an act of medical malpractice committed on an adult is three years. If harm to a patient resulted from a medical assistant administering the wrong dose of medication to a patient in Massachusetts, a lawsuit must be brought within three years from the time the medication error was made, with the three years commencing at the time the negligent act was committed.