Generally, yes. Recent trends
permit patients greater accessibility to their records, and some states,
including New York, have laws that allow patients to review their charts.
Some states require physicians to furnish a patient with at least a summary
of the patient's office records, if not with a copy of the complete record.
Even if there is no state law
granting you automatic access to your records, you often may see them.
It's usually up to the health care practitioner to decide whether or not
to show you the records. That person must weigh your right to know what's
in the records against the possibility of unnecessarily alarming you. It's
important for doctors to feel uninhibited when they make notations in your
records, and they may be less honest and direct if they think all their
comments may be shown to their patients.
Even in states that do have
laws granting you access to your medical charts, it is within your doctor's
discretion to withhold certain records, such as psychiatric reports or
other information that the doctor thinks would be likely to harm you. For
instance, if your records indicate that you have a fatal disease, a psychiatrist
may withhold them if he thinks knowledge of the illness would drive you
to commit suicide. Generally, the law gives psychiatrists wide discretion
to withhold information that may alarm or agitate the patient and cause
his or her condition to deteriorate.
Still, these records concern
you, and if you want to know what's in them, don't be afraid to ask. You
can also request that your doctor review them with you and explain any
distressing or confusing information.
WHO BESIDES THE PATIENT AND DOCTOR
IS ALLOWED TO SEE A PERSON'S MEDICAL RECORDS?
Generally--but not always--only
the people giving you medical care are allowed to see your records. Most
of the time, medical information will be released to someone else only
with your consent or the consent of a person who has been legally designated
to make medical decisions for you.
Some information receives extra
protection because it is so sensitive. For example, federal law imposes
strict constraints on the disclosure of records concerning treatment for
drug and alcohol abuse. Some state laws limit disclosure of sex-related
treatment, and some restrict the release of HIV and AIDS information.
Still, while your medical records
are generally regarded as private, there are times when they may be examined
by people other than your doctor. If the information in them is important
to a criminal case, for instance, a judge may order that the records be
released. Also, your doctor may be allowed to reveal confidential information
about you if it is necessary to protect another person. If, for example,
a psychiatrist's patient expresses an intention to kill someone, or if
a physician's patient with AIDS refuses to inform his or her sexual partners,
those doctors may be permitted by state law in some instances and obligated
in others to inform the proper authorities.
Many states also have laws
requiring disclosure of medical information when the public interest is
at stake. These laws vary from state to state, but doctors are commonly
required to report things like births and deaths. Some states also require
doctors to report industrial accidents, abortions, cancer, contagious diseases
such as smallpox, gun shot wounds, Legionnaire's disease, and AIDS. Usually
the patient's name does not have to be disclosed. Also, in every state
it is mandatory for doctors to report cases of suspected child abuse.
WHAT INFORMATION MUST A PHYSICIAN
TELL A PATIENT?
You always have the right to ask
your doctor questions about your medical care. In fact, before your doctor
can treat you, he or she must obtain your informed consent. That means
your doctor must tell you enough information for you to decide whether
or not you want the treatment.
Generally you must be told:
-
the nature and purpose of
the treatment
-
the risks and consequences
-
the alternative courses
of treatment, including the consequences of no treatment.
Before giving you something other
than routine treatment, such as performing an invasive procedure, your
physician may ask you to sign an informed consent form. Often such a form
notes that you have been told of the risks of the procedure and agree to
undergo it. But no matter what the form says, your doctor always has the
obligation to exercise due care when treating you, regardless of what you
have signed. And you always have the right to sue if your doctor is negligent,
so long as you initiate your suit before the statute of limitations has
expired.
Note: Except in a few instances,
nothing in the law requires that consent be given in writing. However,
if a patient sues a doctor for failing to provide informed consent, it
may be difficult for the physician to prove that proper consent was obtained
if there is no supporting document. That is a key reason why patients are
asked to sign consent forms.
CAN A DOCTOR WITHHOLD A DIAGNOSIS
FROM A PATIENT?
Not usually. However, if a doctor
reasonably believes that the patient's mental or physical well-being would
suffer from learning a diagnosis, something known as the "therapeutic privilege"
may permit the physician to withhold that information. Still, this privilege
is narrow, and the fact that a patient could be upset by certain facts
does not usually permit a doctor not to tell the patient. Knowing the facts
must pose a serious threat to a patient's physical or mental health to
justify a physician's withholding the facts.
A mentally competent patient
may, however, ask the doctor to withhold bad news. In that case, the doctor
has no legal obligation to disclose information that the patient makes
clear he or she does not wish to know.
When a patient is not mentally
competent, a doctor must always disclose information about the patient's
condition to a person who has authority to make medical decisions for the
patient.
CAN A DOCTOR REFUSE TO TREAT A
PATIENT?
It depends. While some states
have Good Samaritan laws that obligate doctors to help out in certain life-threatening
situations, doctors generally have no legal obligation to assume the care
of a patient. However, once a doctor-patient relationship has been established,
the physician usually cannot refuse to treat you. Doing so could be considered
"abandonment." If a doctor wants to terminate the relationship with a patient,
adequate notice must be given so the patient has a reasonable opportunity
to find alternative care.
It is standard practice for
a doctor to have a covering doctor on-call when he or she is unavailable
for patients. Also, if a doctor's office is not equipped to handle an emergency,
the doctor must advise you to seek care at an emergency room. If the doctor
does this in good faith (and not just because he or she doesn't feel like
treating you), then it probably does not constitute abandonment.
CAN HOSPITALS TURN PATIENTS AWAY?
Not if it's an emergency. Federal
law requires most public and private hospitals that accept Medicare patients
to stabilize any patient who needs emergency care. In addition, statutes
and court decisions in most states require hospitals to treat any patient
who requires emergency care. These "anti-dumping" laws developed out of
concern that private hospitals were denying emergency care to financially
undesirable patients by transferring them to public institutions.
Non-emergency treatment is
different. Private hospitals are not required to provide such care to people
who cannot pay, but federal law requires most public hospitals to offer
charity treatment in order to qualify for federal loans or grants.
Once any hospital, public or
private, accepts a patient for treatment, it cannot unreasonably stop treating
that patient without risking liability for "abandonment." Even if the patient
has failed to pay his or her bills, the hospital cannot discontinue treatment
without giving the patient sufficient notice and enabling the patient to
arrange for care elsewhere. If the patient is still hospitalized, the facility
may be required to arrange for transfer to another facility. If that can't
be done, then the hospital may have no alternative but to continue to provide
care. Even if a patient no longer requires hospitalization, a hospital
could be liable for abandonment if it fails to make reasonable arrangements
for a patient's post-discharge needs.
A hospital may sometimes be
able to discontinue treatment if a patient is disruptive or non-compliant.
A disruptive patient is someone whose behavior interferes with the facility's
ability to provide quality care and ensure the safety of other patients,
visitors, and employees. A non-compliant patient is someone whose failure
to cooperate with the treatment makes it impossible to provide appropriate
care.
Of course, a hospital has no
legal obligation to keep a patient who no longer requires hospitalization.
If you remain in the hospital past the date set for your discharge, the
hospital may either remove you physically or bring an action for trespass.
WHEN A SPOUSE REFUSES TO CONSENT
TO MEDICAL TREATMENT, CAN THE OTHER SPOUSE GIVE IT?
Not usually. If your spouse is
a mentally competent adult, he or she has an almost absolute right to refuse
treatment--including necessary treatment for a serious illness.
There are a few circumstances,
however, in which a patient's right to refuse treatment is limited, especially
when the person suffers from a contagious disease that threatens public
health. In these instances, the patient may not be permitted to refuse
treatment. Vaccinations, for example, are routinely required for everyone
-- even people who object on religious grounds.
But if a person lacks the mental
capacity to make an informed choice, consent is usually obtained from the
patient's next-of-kin or legal guardian. In some cases where a mentally
incompetent patient refuses treatment, it may also be necessary to get
a court order.
CAN A PERSON IN THE HOSPITAL BE
FORCED TO TAKE MEDICATION?
Not usually. A patient cannot
be forced to take medication unless it is an emergency or a court has ordered
that treatment be administered. Hospitals generally are reluctant to force
treatment on someone who is refusing, even if the patient "lacks capacity"
and does not understand the nature of the proposed care or the consequences
of refusing it. Even a patient who has been committed involuntarily to
a psychiatric facility has the right to refuse medical treatment--unless
a judge overrides the patient's objection.
HOW CAN A PERSON BE DECLARED INCOMPETENT?
Every state has laws that allow
the courts to step in when a person becomes unable to take care of him
or herself. There must be a court hearing at which the person may be represented
by a lawyer. (If the individual has no legal representation, then the judge
will usually appoint a lawyer.) If the court finds that a person is incompetent,
a guardian or surrogate may be appointed to manage his or her affairs and
make medical and other important decisions for them.
To avoid such a major loss
of control, you can name someone to be your conservator in the event that
you become unable to care for yourself.
WHEN CAN A PERSON BE HELD IN A
MENTAL INSTITUTION INVOLUNTARILY?
A person can be admitted to a
mental institution against his or her will through a process called "commitment,"
and every state has laws that control this procedure. Most states limit
such admissions to people whose mental illness makes them dangerous to
themselves or others, and all states give the patient the right to request
a review by a court at some point in the commitment process. No state permits
a facility to retain a patient forever without regular review of the patient's
need for continuing hospitalization.
The standards for civil commitment
vary from state, but every person who has been committed against his or
her will has the right to a hearing and an attorney before being committed
indefinetly. (Some states require that the hearing occur before commitment.
Others require that it occur if a person is committed involuntarily for
more than a certain number of days.) In most states, an individual must
be found mentally ill and posing a danger to himself or to others. The
person's judgment must be so impaired that he or she does not understand
the need for psychiatric treatment, and there must be no less restrictive
method of care available.
All states will provide legal
representation for psychiatric patients who are unable to afford it.
ARE DOCTORS ALLOWED TO CHARGE
ANYTHING THEY WANT?
Yes. There generally are no legal
limitations on what a doctor may charge. However, marketplace forces will
often determine how high fees will go. In addition, private insurance as
well as Medicare and Medicaid usually cover only charges that are reasonable
and necessary. Sometimes, too, a doctor may arrange with insurers to keep
fees within a certain range, in which case the fees cannot exceed the agreed
on limit.
CAN A DOCTOR CHARGE FOR A MISSED
APPOINTMENT? Yes, though most doctors don't. No law prevents them from
doing so, but since it's standard practice for physicians not to bill for
missed appointments, a doctor who did so might lose patients.
However, it is accepted practice,
for instance, for psychiatrists and psychologists to bill their patients
for sessions they miss. If your psychiatrist tells you the ground rules
up front and you accept them, then you have a contract and must abide by
it. Of course, if you refuse to pay a bill the doctor probably wouldn't
take you to court, but he or she probably would not continue to treat you,
either.
WHAT SHOULD YOU DO WHEN YOU THINK
A DOCTOR OR HOSPITAL HAS CHARGED AN UNREASONABLE FEE?
There are steps you can take,
depending on how badly you have been overcharged and who ultimately pays
your bill.
If you have health insurance
and your carrier declines coverage, ask your physician to explain to the
insurer why the services rendered were reasonable and necessary. You can
also ask your state's department of insurance how to appeal excessive medical
bills.
If you are on Medicare, a doctor
cannot charge you more than 15 percent over the limit Medicare has established
for a given service. (That's set by federal law; some states have even
stricter limits and do not allow doctors to bill you for the balance that
is not covered by Medicare.) So, if Medicare allots $100 for a service,
your physician cannot charge you more than $115 for that service. If your
doctor's bill exceeds the 15 percent allowed, either you have been overcharged
by the doctor or underpaid by Medicare. If the doctor won't adjust your
account, you can ask Medicare to re-examine your claim. If Medicare finds
the doctor overcharged you, the physician must adjust your account within
15 days of receiving Medicare's decision. If your physician does not comply,
you can report him or her to Medicare or to the Health Care Financing Administration
(HCFA). The number for the Medicare hotline is
800-638-6833. The number
of the HCFA is 410-966-3000.
If you are a Medicaid patient,
a participating Medicaid physician should not charge you anything. If you
are billed for medical services, you don't have to pay the bill. You can
also report your physician to Medicaid. (Non-participating physicians will
likely refuse to treat you at all.)
If you think you have been
overcharged, you should contact the licensing board in your state or the
local medical society in your area, which may both have a procedure for
investigating excessive medical charges. If an overcharge is exorbitant,
you may also consider consulting a lawyer, since you may be able to sue
your doctor for fraud.
