Medical Malpractice FAQs

Informed consent is the legal doctrine affirming a patient’s right to determine and control their own medical treatment. The patient’s consent must be voluntary, competent, and informed. In practice, it is a discussion that takes place between the physician or healthcare provider rendering care and the patient. The informed consent discussion may not be delegated to a staff member. It is the responsibility of the treating physician/healthcare provider to provide information that will assist patients in their decision-making process.

The elements of a lack-of-informed-consent cause of action are set forth in Public Health Law §2805-d. The patient must be informed of the reasonably foreseeable risks, benefits, and alternatives of the proposed treatment or procedure, including the option of no treatment and the risks of the alternatives. In order to give consent, the patient must have capacity, i.e., the ability to understand the nature and consequences of the treatment.

A signed consent form is helpful in defending a lack-of-informed-consent claim but is not conclusive evidence of an informed consent discussion. The patient may still dispute that they signed it, that they understood it or that a consent discussion preceded their signature. The signed consent is an acknowledgment that the required informed consent discussion took place. A witness who signs the consent document confirms that the patient confirmed that they read, understood, and acknowledged the document, appeared to have capacity for the purpose of giving consent, and signed the form. However, if the patient disputes that an informed consent discussion occurred, it may be enough to create a question of fact for a jury. For this reason, we recommend also documenting the consent in a note in the medical chart, confirming that the risks, benefits and alternatives, including no procedure, were discussed, the patient was given the opportunity to ask questions, answers were provided to the satisfaction of the patient, and after that, the patient consented to the procedure. This two-part documentation will confirm and be evidence that a discussion took place with the patient.

Failure to procure an adequate informed consent from the patient can lead to both lack of informed consent litigation and charges of professional misconduct.

Although it is always good practice and important for a physician/healthcare provider to explain to a patient the treatment being rendered, obtaining informed consent in New York State is only statutorily necessary for a non-emergency treatment, procedures, or surgery that involves an invasion or disruption of the integrity of the body — Public Health Law §2805-d. If a physician is in doubt as to whether a diagnostic procedure constitutes an invasion or disruption of the integrity of the body, it is a good idea to err on the side of obtaining informed consent.

In New York, a minor is defined as a person under the age of 18. Generally, consent for medical treatment of a patient who is a minor must be obtained from the parent or legal guardian. There are exceptions. Minors who are emancipated, serving in the military, or incarcerated may consent on their own. Pursuant to Public Health Law §2504(1), if there is an emergency and a minor is in need of medical attention, and an attempt to secure consent would result in delay of treatment that would increase the risk to the person’s life or health, parental consent is not necessary. Also pursuant to Public Health Law §2504, a minor who is married or is the parent of a child can consent for themselves as well as for the child, as can a minor who is a homeless youth or receives services at a program under Education Law §532-a. A minor who is pregnant may consent to prenatal care and a person in a parental relationship to the child (as defined by the statute) may give consent for the immunization of the child, unless this person knows that the child’s parent objects to the immunization. As a matter of federal right to privacy and Mental Hygiene Law §33.21(c), minors may also consent for certain mental health services, certain alcohol and drug abuse services, reproductive healthcare, including birth control, abortion, and STD testing and treatment.

Generally, a practitioner-patient relationship arises when care is first provided. However, arguments may be made that the relationship starts earlier, when managed care organizations provide a list of patients who have chosen the physician as their primary attending, when an appointment has been made, or when some other mechanism occurs by which an expectation of care arises. An example would be when an on-call physician treats a patient in the emergency department (ED) and advises the patient to be seen for a follow-up visit in their office at a defined time. If an on-call doctor has neither been called in for a consultation by the ED physician nor treated the patient in the ED, the receipt of a courtesy copy of the emergency room record does not create a practitioner-patient relationship. However, hospital bylaws may require such a follow-up appointment.

To discharge a patient from care, you should notify the patient in writing. Patients may be discharged for any reason that is not discriminatory as long as the patient is not in a course of treatment. You have the option of giving the patient a defined reason. Commonly cited reasons for discharge include a disruption in the practitioner-patient relationship, non-compliance with treatment recommendations, commencement of litigation against the practitioner, non-payment, or threats and abusive behavior by the patient or a family member.

While there is no specific time required by law, we generally recommend giving the patient a reasonable amount of time to seek a new physician, e.g., 30 days from the date of the letter, during which you will be available only for emergencies. The amount of time a patient will need to find a new practitioner depends on the care needed, the geographic location, and other factors. In order to avoid allegations of patient abandonment, discretion should be exercised to consider these factors. The letter should advise that continuing care is needed and provide resources that will assist the patient in obtaining a new physician, such as the name and phone number of the county medical society. We do not recommend that you list the names of specific physicians.

The MLMIC Legal Department has sample form letters that can be modified for your use for discharging patients from care. Legal is also available to discuss specific situations, including medication for patients being discharged and limitations on the discharge of pregnant patients or those with urgent or serious medical conditions.

The answer to this depends on the patient’s condition, the availability of other care in your area, and the hospital’s bylaw requirements, if any. If the patient’s immediate problem has been resolved, unless the bylaws require you to provide a follow-up visit, you are not obligated to see that patient in your office. However, if the patient needs further care and the problem can be resolved in one or two office visits, you should probably see the patient and then discharge the patient from care by letter. If the patient continues to have an urgent or serious medical problem that requires continued care, you should complete that course of treatment before discharge.

The medical record is the record of treatment provided to the patient and is a legal document. It contains the complete history, evaluation, diagnosis, treatment, and care of a patient, created at a time when there were no adverse outcomes or medical malpractice litigation. It goes into the jury room when they deliberate. It is likely that the jury will be told that if you didn’t chart it, you didn’t do it. Thus, the importance of a complete and accurate medical record cannot be overstated.

Today, the majority of medical records are electronic records that are dated, timed, and signed electronically. It is important that all entries in the medical record be contemporaneous with treatment. You should accurately record both positive and negative findings. Missed appointments, failure by the patient to accept or follow your treatment instructions, and discussions with the patient regarding the same should be documented. Your observations should be documented in an objective and dispassionate manner. The medical record is not the place to settle disputes, assign blame, or write derogatory remarks. Such superfluous entries communicate a lack of professionalism and may raise doubts about the record’s overall credibility.

Addendums should be timely and contain information relevant and necessary to the patient’s present and/or future care and treatment. Never write an addendum weeks or months after a patient has died or after an attorney has requested records. Any addendum that does not meet these criteria may be considered self-serving or even deemed an alteration of the record. If it is necessary to write an addendum to a patient’s record, be sure to indicate the date of and reason for the supplementary information. Remember that accurate recordkeeping is vital, not only in the course of providing good patient care but also because carefully maintained records offer a credible and accurate defense in court. Any record that appears to have been altered for the purpose of covering up an error or improving the record for litigation completely lacks credibility and may subject you to punitive damages.

Generally, we recommend that medical records be retained for 10 years from the date of submission of the last claim for payment. Records of minors, under 18, must be retained for at least 10 years from the date of submission of the last claim for payment or when the minor reaches the age of 20 years and 6 months, whichever is longer. Medical records of obstetrical patients must be retained for the same period as for minors. If the birth was viable, but the child did not survive, the records must be retained for 10 years from the date of submission of the last claim for payment. These time periods are recommended in view of state and federal statutes and regulations pertaining to malpractice and healthcare offenses.

You must have an authorization or release form signed by the patient or by an individual legally authorized to request healthcare information. The authorization must be dated and must designate the name of the party who is releasing the record and to whom the records are to be released. The authorization or release form must state the reason for the authorization (“at my request” is sufficient) and must specify the medical information to be released (e.g., “all my records”). Each authorization form must contain an expiration date or event. In addition, the Health Insurance Portability and Accountability Act (HIPAA) requires that certain statements be included in each authorization form. Use of a standard HIPAA authorization template ensures that the authorization form is HIPAA compliant. We recommend comparing the patient’s signature on the release form to their signature in the chart. If the patient is not the person who signed the authorization, then a copy of a legal document permitting the designee to sign the authorization must also be obtained. These may include, for example, healthcare proxy documents or court papers appointing the person as the administrator or executor of a deceased patient’s estate. In unusual circumstances, such as those concerning custody or divorce, patient incompetence, or death, you should contact your attorney or the MLMIC Legal Department to discuss how to proceed.

Any medical records containing HIV-related information, records from an alcohol or drug treatment program, and/or certain psychiatric or mental health facility records require a specific and special authorization. The New York State Department of Health (DOH) HIPAA-compliant HIV authorization is available on the DOH website. Psychotherapy notes that receive heightened protection are defined by HIPAA as notes recorded by a mental health professional documenting or analyzing the contents of a conversation during a counseling session. They are specifically protected under HIPAA only if maintained separately from the record. Notes not deemed to be psychotherapy notes include medical prescriptions and monitoring, session times, modalities and frequency of treatment, summaries of diagnoses, functional status, treatment plan, symptoms, prognosis, and progress to date. If a physician writes a note in the office record about the patient’s history of mental illness, the use of psychotropic medications, or the addiction to or abuse of alcohol or illegal drugs, a special consent to release records is not required.

Yes, if the patient relays this information as part of their history or it is medically relevant to their present care and treatment, it may and, in fact, should be documented. However, that chart then becomes a protected chart under Article 27F of the Public Health Law, which governs the confidentiality of HIV-related information.

The HIV law clearly requires the release of records only with a special HIV consent form or a court order, issued only after a hearing, at which time the patient has had an opportunity to contest the release. A subpoena is not sufficient.

Yes, the fact that an HIV test has been done, regardless of the result, raises the possibility that the patient has risk factors for HIV. The patient may sustain harm if this information is released inappropriately.

You may not tell the staff if the sole purpose of informing them is infection control or having them take extra precautions. You may only tell the staff if the disclosure is necessary for the patient’s care and treatment.

No, the Good Samaritan Law does not protect you from being sued if you are in your office or a hospital. It provides that any licensed physician who voluntarily, without expectations of receiving monetary compensation, renders first aid or emergency treatment at the scene of an accident or other emergency which occurs in a location other than the doctor’s office, a hospital, or other healthcare facility, to a person who is unconscious, ill, or injured shall not be liable for damages. This protection from liability, however, does not apply if the doctor is grossly negligent.

No, the National Practitioner Data Bank only requires your insurer to report indemnity payments made on your behalf as a result of a written claim.

No, out-of-pocket payments by individual practitioners for refunds or settlements are not required to be reported to the National Practitioner Data Bank.

Health Maintenance Organizations and group medical practices qualifying as entities under the National Practitioner Data Bank plan because of their professional and formal peer review activity may query the Data Bank. Hospitals must query the Data Bank when a physician, dentist, or other qualified healthcare practitioner applies for a position on the medical staff or applies for a change in clinical privileges. Hospitals must also query the Data Bank when re-credentialing members of the medical staff. An insurance carrier cannot request information from the Data Bank.

Practitioners can receive copies of their complete file at any time, free of charge, by submitting a Request for Information Form to the National Practitioner Data Bank. Healthcare practitioners are not automatically notified when a report is released on them in response to an inquiry but may periodically obtain this information by requesting a copy of their Data Bank file. Practitioners are only notified when they are the subject of a report received by the Data Bank.

No. All payments made by a medical malpractice carrier on behalf of a practitioner in response to a written claim are reportable to the National Practitioner Data Bank.

We recommend that you follow up with your patient regarding all tests and consultations ordered by you. Failure to do so could lead to a delay in diagnosis or misdiagnosis of a serious disease. Follow-up efforts should be documented in the chart.

No. An authorization to disclose medical records does not authorize you to discuss the patient’s care with the attorney making the request. You may receive a call from an attorney requesting an appointment to discuss your care of a patient or to have you interpret your notes in the patient’s medical record that the attorney already has in their possession. Even if the attorney assures you that you will not be sued or that your conversation is off the record, exercise caution and immediately contact your own attorney before agreeing to speak with the attorney.

If an attorney wishes to question you about a patient’s care, they should get an Arons authorization from the patient or question you at an examination before trial or deposition, where you may have counsel present for your protection.

No, you are not obligated to provide a written narrative or responses to questions asked by the patient’s attorney.

Liability for employment and supervision of physician assistants or nurse practitioners depends on the type of provider, your role in supervising or employing the provider, contractual provisions, and New York law. For specific questions, please contact your attorney or the MLMIC Legal Department.