July 30, 2013



A patient called my practice today asking for her records and told my staff she was concerned an abscess I drained for her was not treated properly.  What should I do?  I am concerned because I am not covered for surgical procedures and my insurance may not cover me.  Should I call this patient?

Please advise.
Dr. J


Dr. J, thank you for raising this concern now before calling the patient or proceeding further.  Under only a limited number of circumstances would you contacting the patient result in a positive outcome.  What we know of the situation, as relayed, is you are currently not covered with malpractice insurance for surgical procedures, which you are performing, and a patient has contacted the practice requesting records and reporting she has been injured.  This patient may not have sustained an injury, or she may have sustained an injury that is not tantamount to your malpractice, regardless her relayed statements and request for records indicates she may very well be shopping around for an attorney.

First step, contact your malpractice carrier and put them on notice - required by your policy - and in your best interest especially if you are covered.  Should the carrier disclaim coverage or indicate they may disclaim, immediately look into hiring defense counsel. You can always call me for assistance, as our firm regularly handles defense work. 

Second step, .you cannot ignore a legitimate patient request (accompanied by required written documentation) for medical records (unless there is an overriding consideration, i.e., public health).  At all times you are merely the custodian of the record, which is the property of the patient.  If you are not sure you have received a valid record request or authorization, call our office and send it in for us to review.  Better safe then sorry.

If this scenario does escalate and you are served with a lawsuit, do not let the papers sit in your office, kitchen table, garbage, etc.  Seek counsel immediately.  Be advised, if you are served by mail you only have 30 days to respond, and if you are served personally, you only have 20 days to respond.  Do not try and navigate these situations yourself.  Many doctors believe the patient will listen to them, reason with them, forgive them or settle with them.  What you say can and may be used against you in a court of law - patients audio and video tape!  And, many patients are crazy.  Advice to follow - do not attempt to diffuse on your own. 

For assistance with general practice issues such as above, contact Jennifer at 516 747 6700 x. 302 or at Jennifer@Kirschenbaumesq.com.

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