Attorney Pat Curran featured in the Buffalo Law Journal

Buffalo Law Journal: Health records law moves slowly


By Michael Canfield  – Editor/Reporter - Buffalo Law Journal, Buffalo Business First
July 9, 2018

While access to medical records has increased over the years, it’s not happening as quickly as it could in Western New York, according to an attorney who works closely with the medical profession. 

“As we know, HIPPA (the Health Insurance Portability and Accountability Act) is supposed to provide greater access to the content of medical records, as well as provide for better sharing of records between medical providers,” said Patrick Curran, a member at Hurwitz & Fine P.C. “It seems to me, at least in Western New York, that this is happening much too slowly. Between providers, the sharing of information has been hamstrung by the inability of different medical records systems to communicate with one another.”

Physicians, even younger practitioners, still have the mindset that medical records belong to the provider as opposed to the patient, Curran said.

“Based on HIPPA, it’s supposed to belong to the patient and the provider, even if the provider controls the record and has the ability to maintain it and enter information in it,” he said. “I think we’re moving to the point where the patient has as much right to see what’s in the medical record as those who created it.”

Pointing to a system called “Open Notes,” Curran said there have been systems created that are transparent and encourage medical providers to make records easily available to patients. 

“It allows for ongoing communication and collaboration between the providers and the patients,” he said. “It encourages doctors to have the patients read their records online and to comment and discuss it with the physician.”

There are concerns that some patients may be frightened by what they read in their records or not understand something, especially if there was a diagnosis of cancer or another life-altering illness.

“On the other hand, if they’re aware of what’s in the medical record, it should help them communicate with the doctor in terms of what symptoms the patient has and whether the patient is following the doctor’s instructions,” Curran said. 

Providers should be open to providing records as opposed to the “knee-jerk reaction” that they “own” the records, he added. 

“That is obviously not the case under HIPPA,” he said. “Again, the whole theory behind HIPPA has been very slow to take hold. To the extent that patients ask for and are interested in seeing all or part of their medical records, the physician should be open to it.”

He lamented the “old school” attitude of some medical professionals, saying, “It’s a kind of a paternalistic view. In the past, physicians were in charge of treating a patient, and the patient does not need to know what’s going on, and the patient can’t understand it. Again, that has to change so it’s more collaborative between patient and doctor.”

There’s also the fear of malpractice suits, according to Curran. 

“It’s the idea that the patient will be looking for some fault or will be second-guessing what the doctors did or will misunderstand the doctor’s record,” he said.

Patients are advised to consult with the doctor if there is any misunderstanding, he added.

There could be mistakes on a patient’s record, which the patient should have the right to rectify.

“On the other hand, if there’s some misunderstanding as to what the doctor wrote, the doctor doesn’t have to change it. But at least they know what the patient is thinking,” he said. “The patient and the doctor should be on the same page, literally. The doctor needs to share the pages with the patient.”

Patients may not like something a doctor said about them in their medical records, he said. For instance, they could be offended if the issue involves obesity or depression. 

“If the patient becomes offended because they don’t think they’re obese, or they’re depressed, that should prompt a discussion between patient and doctor,” he said. “If it gets to the point where they don’t have a good rapport, and the patient doesn’t like what the doctor is finding or diagnosing or suspecting, then that doctor-patient relationship probably needs to end. The patient needs to find a different doctor.”

Scott Simpson, counsel at Harter Secrest & Emery, said providers have incentives from the federal government to switch medical records from paper to digital. Part of the way to be fully funded in that endeavor is to have patient access portals, which give patients immediate, on-demand access to certain portions of their medical record.

“Any health system of any size these days has these portals,” he said. “Your entire medical record isn’t dumped into this thing; it’s only certain portions. It’s mostly test-based.”

The portals may also contain immunization records.

Lab results provided in the portal often have what’s considered “normal” so patients can compare records.

“If you looked at your glucose level in isolation, you’d probably have no idea what that number means,” he said. “The range is right there next to it so you can tell if you’re in the range or not.”

In anticipation of the patient portals, Simpson said, the rules in New York needed to be changed. Giving patients direct access to their lab results was prohibited.

“The concern was that patients would get these numbers, have no idea what they were, do some (internet) research and get concerned where they don’t need to be or not concerned enough where they should be,” he said. “They didn’t have the same framework as a doctor would, who’s obviously trained to go through these results.”

He added: “With some of the sensitive tests like HIV or genetic testing or pregnancy test results, most systems keep that information out of the patient’s access portal. They require you to go right to your doctor to get those results. They’re worried about how the patient gets that information. You can imagine that you might not want to find out you have cancer from your computer.”

Mental health information and sensitive tests receive heightened protection under state laws, according to Simpson. 

“Just from a security perspective, systems are a bit leery about making that information available through the electronic portal, even though they really shouldn’t be,” he said.

X-rays and other imaging results may be put in the portal after a delay, in order for the patient to consult with their doctor and understand the results, Simpson said.

“The stuff you can look at (online) has been a very good thing and a very bad thing,” he said. “It’s trying to avoid people thinking, ‘That’s a really bad break,’ when, really, it’s the lens or something. A doctor can tell that very easily.”

Recent guidance at the state and federal levels encouraged patients to be more involved in their health records, said Laurie Cohen, a partner at Nixon Peabody. 

“The state has emphasized the obligations of providers and facilities to afford patients and their authorized representatives access to their information,” she said. 

Issues may crop up in instances where a minor can withhold treatment information from their parents, Cohen said. Such cases may involve issues with mental health treatment.

“Minors can consent to mental health care, to the extent that you have a minor who is feeling whatever the stressors are,” she said. “Maybe the stressors are actually related to their family setting and, by sharing that information, it could create more volatility in that household. Whatever is going on, they don’t want that information shared because whether it’s real or not, they won’t get the support they need.”

Other cases may involve testing for sexually transmitted disease, Cohen said. 

“There are various steps where a minor can initiate care for themselves,” she said. 


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