WHEN A HOSPICE REFUSES TO RELEASE
When problems have gone unresolved and you wish to file a complaint or take legal action against a hospice, you may wish to get a copy of your loved one's hospice medical record. You may wish to get a copy of the hospice medical record, even if you do not wish to file a complaint. The hospice must keep accurate, complete and readily accessible patient care records. The regulation governing hospice records states:
A PATIENT MEDICAL RECORD:
WHAT TO DO
42 CFR ch iv. part 418, Sec. 418.74
"Condition of participation--Central clinical records."
"In accordance with accepted principles of practice, the hospice must
establish and maintain a clinical record for every individual receiving
care and services. The record must be complete, promptly and accurately
documented, readily accessible and systematically organized to
(a) Standard: Content. Each clinical record is a comprehensive
compilation of information. Entries are made for all services provided.
Entries are made and signed by the person providing the services. The
record includes all services whether furnished directly or under
arrangements made by the hospice. Each individual's record contains--
(1) The initial and subsequent assessments;
(2) The plan of care;
(3) Identification data;
(4) Consent and authorization and election forms;
(5) Pertinent medical history; and
(6) Complete documentation of all services and events (including
evaluations, treatments, progress notes, etc.).
(b) Standard; Protection of information. The hospice must safeguard
the clinical record against loss, destruction and unauthorized use."
The patient and/or Personal Representative of the Estate of your loved one always have the right to get a copy of the chart. The hospice may charge a reasonable fee for copying the medical record. However, if the fee is unreasonably high, then that should be reported to the State licensing division, because it may be an attempt to discourage you from getting the medical record. If you are filing a legal action, you will have your attorney get the medical record. If you simply wish a copy of the record, you will need to have the Personal Representative of the Estate (of your loved one) write a letter requesting the chart from the hospice, sending the letter by certified mail, return receipt requested, and always keeping a copy for your records.
If you have not received a reply within a couple of weeks, you can try physically going to the offices of the hospice and requesting the medical records right then and there (waiting there while the chart is copied), or write again requesting the records, again by certified mail, return receipt requested. If the hospice continues to ignore your request for the medical records of your loved one, then you can file a complaint with the State licensing division about the hospice refusal to provide a copy of the chart. See "filing a complaint." The letter of complaint should be sent in by the Personal Representative of the Estate of your loved one (who also wrote the letters requesting the chart originally). Enclose photocopies of the previous letters to the hospice along with the copies of the U.S. Postal Service Return Receipt cards showing that the hospice received your letters.
Refusing to provide a copy of a medical record to the Personal Representative of the Estate (or the patient) is itself a violation of the standards governing licensed hospices. A hospice with integrity will release the medical records to either the patient or the official Personal Representative of the Estate. Rogue hospices that knowingly violate the standards may refuse to provide these medical records voluntarily, because they wish to hide their violations and cover them up. They do not wish to be caught and do not wish to allow any evidence of their wrongdoing to be known by you. You should always contact a competent attorney if you have legal questions regarding a hospice's refusal to provide a copy of the medical records.
If you have filed a complaint with the State about a hospice refusing to release medical records, and the state tells you that they can't do anything, you can contact your local State Representatives or Senators for assistance. We are receiving reports of hospices refusing to release records of patients where there are allegations of malpractice, negligence and even involuntary euthanasia. If you're brave and not shy, you may wish to carry a picket sign outside the hospice stating, "Hospice unwilling to release medical records!" and you may get a quick release of the medical records. While that may seem outlandish, for those who have tried everything in terms of polite written requests, filed complaints and still not gotten the records, it may be worth trying.
Need to File Complaints to Board of Medicine,
Board of Nursing and Find Plaintiffs' Attorney
For Legal Advice
One important point to remember though, you will need to send a detailed complaint to the State Board of Medicine as soon as possible, because in some cases, the DEA will wait to see the findings of the State Board of Medicine. You can also file a complaint to the State Board of Nursing if a nurse was involved in administering a fatal dose of narcotic. It is wise to consult a medical malpractice attorney before filing your complaint to the Board of Medicine and it is also important to get a medical review by an independent physician.
If you wish to stop serious violations of patients' and human rights in hospice (including involuntary euthanasias/medical killings of patients), you may wish to get an independent medical review of your loved one's case. Asking a physician for a professional opinion about what happened can help explain why certain actions were appropriate or inappropriate, and whether they constituted medical malpractice, negligence or worse. Your attorney can assist you in getting the medical record if you haven't been successful yet. Most hospices will fight tooth and nail to prevent you from getting the medical records (if something truly terrible happened). If you don't have or know of a medical malpractice attorney in your area, you can search for a plaintiffs' attorney.
It is very important that you try to find an attorney who files claims as a plaintiffs' attorney to represent you. If you get an attorney who handles medical malpractice, but regularly represents the corporations, you may not get the legal representative you deserve! Hospices have been known to falsify documentation, delete information, send incomplete records, stall and many other tactics that infuriate the families of the victims. A plaintiff's attorney will be able to successfully overcome the obstacles that hospice corporations routinely throw in the way of families seeking the truth (and a full, accurate copy of the medical record).
Taking the step by step approach to achieving justice will help make it more likely that the truly egregious violations of standards of care are noted (some you may miss, not being a physician) and corrected through the government justice departments and local district attorney's office. Having a medical malpractice attorney help you will assure that the complaint to the Board of Medicine and Board of Nursing is written in such a way that the allegations are not capable of being misunderstood or brushed aside.