Electronic Records, Subpoenas and the Hubris of Lawyers

The notice of subpoena did not surprise me; I already knew about the litigation. In my state attorneys must provide two weeks notice before serving a subpoena duces tecum to allow the affected parties time to seek protection, that is to quash the subpoena, in this case for medical records. Like most such subpoenas, this one, signed by attorney Nancy W. Anderson, representing Wells Fargo Bank, commands me to appear at the law office (Graham and Dunn) this coming Monday at 9 AM "to produce and permit inspection and copying of the following documents or tangible things." Typically one simply provides copies of the records by mail. Also typically, circa 2012, and for many years prior, such a subpoena might also likely mention electronic files. Since this one does not, I faxed attorney Anderson a letter asking for clarification and assistance. As of today she has chosen not to respond except that she did confirm that no one has succeeded in quashing the subpoena, so I must comply.


It turns out that the records in question exist not only in a manila folder in a file cabinet in my office, but also on the hard drive of an old computer, and in the cloud in three different locations. I can probably (I am no computer expert.) make digital copies of one or two of the files on a CD, but I know no way of copying some of the files that exist in the cloud. This means that anyone who wants to review the records will need to access them directly via the Internet. An attorney for my EMR (electronic medical record) service assured me that this can be done.

Attorney Anderson does not seem to appreciate the difference between paper medical records and the EMR, or maybe she just does not know what to do. This particular record includes at least two items that I am unable to "copy" to paper: a voice mail recording from Anderson herself and the digital signatures that I assume accompany each item. I can do no more than assume as I know of no way to view the signatures myself, much less render them to paper. I might liken the notion of copying an EMR to paper to that of copying water or the barking of a dog.

The confusion here certainly inconveniences me (although it does give me something to write about), but having myself reviewed as an expert witness pathetic paper counterfeits of electronic records, I have concluded that today an expert who has not accessed the EMR directly using a computer should be accorded no credibility in court. The credible expert witness therefor must not only demonstrate expertise in the area of medicine at issue, but must also know how to navigate the EMR, which in some cases requires considerable training and experience.

Still faced with an unresponsive -- if not rude -- attorney I sought help from Judge Dean Lum (pictured above), but officials at Superior Court advised me that I would have to file a motion to spur Judge Lum into action. Someday, maybe, but not now. Instead, they advised me to contact the opposing attorney. He simply told me not to worry too much but to keep after attorney Anderson.

All I need is for Anderson to tell me what she wants. Perhaps this post will move things along.

Firing All Patients With Medicare

When I announced on my favorite physician Web board that I had mailed discharge letters to five patients solely because they have Medicare my colleagues hailed me as their "hero."

I don't feel like a hero.

I opted out of Medicare years ago, but Medicare requires physicians who have opted out to write a letter reaffirming that status every two years. Last year I realized it might have been four years, so I dashed off a letter and waited. You can imagine my shock when, on February 10, 2012, I opened a letter from "Darla" (no signature or last name) dated August 4, 2011, but with no postmark on the envelope. Darla writes that my "affidavit does not meet CMS requirements." (What affidavit?) She goes on in her 6th grade English: "Opt Out Affidavit was unable to be processed. We did not receive the requested information in a timely manner. A request for information was sent June 13, 2011 to apply for a Type 1 NPI number." (If Darla intends to say Noridian, the Medicare administrator for my area, sent that information to me, I never received it, and I already have some type of NPI number.) Then she writes that I need to use my "Legal Name" when "filling out the information." (How does one "fill out information?")

I called Noridian provider enrollment to investigate. "April" reminded me that treating these Medicare beneficiaries without opting out subjects me to prosecution. I don't want to go to jail, although at least there I might have a right to free medical care.

I sent discharge letters to 5 patients and asked my office manager to call them to warn them in advance. Now I am completing a Medicare DISenrollment form. In the future I will require all new patients to demonstrate that they do NOT have Medicare.

Doctor, Your Secrets Are Safe With DEA

About two years ago I began a chronicle of a colleague's difficult and costly run-in with DEA (Drug Enforcement Administration) during his buprenorphine audit. When the agency refused to provide him with information about his audit I agreed to try to help.

In October of 2010 I filed a Freedom of Information Act demand for records of his audit and that of another physician. Almost 1.5 yrs later I am told by a Cynthia Chasten at DEA/DOJ that the federal government considers such info "personal" even though it involves investigation for possible wrongdoing. They would only release the information if provided with "proof of death or an original notarized authorization" and the physician's social security number, citing "Exemptions (b)(6),(b)(7)(C),(b)(7)(D),(b)(7)(F) and/or of the Freedom of Information Act (FOIA), Title 5 U.S. Section 552." He was willing to do all but provide his social security number.

I am so relieved to know DEA guards the privacy of registered physicians so diligently.

Second Guessing the Medical Board Part III

(Continued from Part II)

Planning and Return Visits

MQAC criticizes Dr. Roys for failure to provide a "well structured care and monitoring plan," and the Amended Statement of Charges finds fault with the fact that "there was not mutually agreed plan for what actions the patient would take in the event that she felt that she was at risk of acting on her suicidal thoughts." With this last statement the board would seem to have us believe that the patient herself should assess her risk of attempting suicide. Yet even professionals trained to do so can assess risk with minimal accuracy. Perhaps the board really meant to say there should have been an agreed plan for an alternative course of action if the patient experienced an impulse to kill herself. Such a "no self harm contract" not only fails to provide any assurance of safety, but mental health professionals may be faulted for relying on such a contract. The board seems to entertain the fantasy that if the patient decides she wants to kill herself, based only on a verbal or even written agreement with a physician she hardly knows she will instead buy herself a new hat or go to an emergency room. In fact common sense tells us that a person who wants to end her own life is extremely unlikely to say, "Oh my, I can't do that. I promised Dr. Roy's I wouldn't. What would he think of me if I broke my promise?" People who want to die do not care about breaking contracts or disappointing psychiatrists.

MQAC contradicts itself when it criticizes Dr. Roy's for asking the patient to return "when she felt the need" since this would seem to include at least one obvious action the patient might take in the event she felt like killing herself. Certainly patients and doctors tend to make definite return appointments most of the time. However, it is quite common for them to defer setting a specific time and date either for the convenience of the patient or because of uncertainties in the schedule of either patient or physician. The board would seem to have us believe that a date and time scribbled on a piece of cardboard would have magically prevented the suicide attempt. First, this begs the question of when the return appointment should take place. To prevent a suicide the apointment should be scheduled shortly before the suicide attempt. The board fails to tell us how even the most skilled psychiatrist might accomplish such a clairvoyant feat. Second, however, the documents provided do not explain the choice to not schedule an appointment. There is a clue, however, in a later criticism which seems to implie that the patient may have chosen to defer her appointment for financial reasons. Again the board leaves us guessing what it expects of a physician in this situation. Dr. Roys' approach respects the patient's choice in the matter. Had he insisted that the patient schedule an appointment there is no guarantee that the patient would have done so or kept the scheduled appointment. If a patient does keep the appointment the additional fee incurred might make her even more despondent, increasing the risk of suicide. The only alternative would be for Dr. Roys to provide the patient with written assurance that he would not charge for the visit. MQAC should state whether it expects physicians to provide their services for free. If such is the case serious questions must be raised about the physician's motivation. Essential to the principles of any profession is the concept that the patient or client should feel no other obligation than paying the fee.

Ulitmately Dr. Roys' patient violated her implicit contract to return "when she felt the need." Responsibility lies with the patient.

Coordination of Treatment

MQAC criticizes Dr. Roys for failure to document coordination of treatment with the patient's psychotherapist "to better tailor the medication plan with the mental health issues of Patient A that the psychologist was dealing with." Without trying to decipher that incomprehensible language I will venture to assume that the board found scant evidence of coordination of effort between psychiatrist and psychotherapist. As I read the documents associated with this case I am left with an eery feeling that there might be another professional involved in the case but that the board would prefer to pretend there is not. The board appears incapable of looking at the performance of more than one professional.

In cases of independently provided medication management and psychotherapy the psychotherapist carries considerably greater responsibility for the outcome than the psychiatrist, if only because the psychotherapist has apparently known the patient for a longer time and probably sees the patient more frequently and for longer encounters. Furthermore, the patient bears some responsibility if she has shared information with Dr. Roys that she has kept secret from her psychotherapist. Having said that, I agree that if Dr. Roys observed evidence of a substantial increase in suicide risk he should have made some attempt to inform the psychotherapist, but this can be easier said than done in the real world. Psychotherapists often fail to return phone calls or respond to e-mail or text messages. Because the board has ignored the psychotherapist's role in this case we do not know how much responsibility this particular psychotherapist might bear. Dr. Roys certainly could have protected himself by documenting attempts to contact the psychotherapist.

The failure of MQAC to address the psychotherapist's role in this case suggests a systemic failure. We must assume that the psychotherapist, too, works under license by the state. Even if the patient did not file a complaint against that independent professional, the state arguably should have looked at the entire treatment team, acknowledging that Dr. Roys has no control whatsoever over the conduct of another professional. The "captain of the ship" doctrine fails when there are two ships and two captains.

Reimbursement

In the "Informal Disposition" the board sets forth a plan to conduct practice "reviews" which will determine "For patients with limited mental health benefits, whether Respondents office has documented contacts with the patient's health plan to determine of [sic] additional benefits can be requested." Would MQAC have us believe that any "plan" provides unlimited mental health benefits? Is there anything that cannot "be requested?" I can imagine a note in Dr. Roys' chart: "According to Patient A's health plan, additional benefits can be requested. Of course they "can be requested!" That does not mean the plan will grant them.

More importantly the plan and any benefits provided or denied are between the patient and the patient's plan. Only if Dr. Roys has contracted with the plan does he have any obligation to either patient or plan in that regard. MQAC has set a dangerous and outrageious precedent if it would hold licensees responsible for obtaining money for patients. Because the physician stands to benefit financially such expectation represents an unethical conflict of interest. We already see the damage resulting from such a conflict in workers compensation systems where the treating psychiatrist must opine that the injured worker's illness resulted from an injury at work in order to obtain reimbursement.

And why stop at obtaining reimbursement? Perhaps MQAC should have required Roys to pay for the patient's medication and psychotherapy to boot.

Conclusions

Dr. Roys made some mistakes:

Accepting care of a patient already taking a benzodiazepine: I always try to screen out patients who expect me to continue prescribing these drugs. Trying to encourage most of them to stop taking the drugs is a thankless task.

Accepting care of a patienet known to have contemplated suicide: What does Roys think he is, some kind of hero? Let someone else take the risk. Duh. The suicide attempt, and only the suicide attempt, led to this complaint. I could find problems with the management or doccumentation provided by any psychiatrist. Discipline was a foregone conclusion. But who opened the bottle and swallowed all those pills? Patient A. Dr. Roys did her a favor. Had he not provided the relatively non-lethal diazepam Patient A might have used a firearm, jumped off a cliff or drowned herself. MQAC should give him credit for saving her life. As long as our courts (and medical boards) would hold me responsible for the behavior of another I will attempt to avoid accepting such patients into my practice.

Furthermore, Dr. Roys should have written the patient a letter as soon as she was admitted to hospital, informing her that she would be discharged in the requisite 30 days, and inform the hosp that it might be well advised in the patient's best interest to keep her in hospital until they find another psychiatrist (arrogant, heroic or stupid enough) to take on such a case.

Accepting care of a patient with limited financial resources: As long as health care financing in the United States remains inadequate doctors must choose between bankruptcy for the patient and optimal care. By accepting such cases physicians enable the country to avoid solving the problem.

MQAC made some mistakes, too:

It perpetuated the myth the physicians can control their patients' behavior. It advanced a paternalistic view of medical practice with psychiatrist as captain of a now mythical ship. It fostered the absurd and cynical notion that the physician should obtain money for the patient. MQAC assigned too much importance to documentation, providing no evidence that better documentation would have contributed to a better outcome. Only Dr. Roys suffered from deficiencies in his documentation.

No change in the treatment, no change in the amount of medication prescribed, no change in the scheduling of appointments or coordination of treatment, no amount of begging for increased reimbursement, and no amount of additional documentation would have prevented this suicide attempt. Most of all, MQAC erred in blaming Dr. Roys for the unfortunate conduct of another.