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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4164
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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A patient entered the ER at a local hospital. Registration

Customer Question

A patient entered the ER at a local hospital. Registration asked for her name. They pulled up my medical record (similar last name and she used her nickname which matched my first name) and assumed it was for this other patient. They asked her DOB. They CHANGED MY PERMANENT MEDICAL RECORD TO REFLECT HER BIRTHDATE. The hospital then admitted the patient under my medical record, (health and insurance, possibly financial) where she stayed two weeks. Nobody ever caught the mistake until she was transferred to a different hospital. The mistake continued on with the second hospital as they admitted her and was only discovered when they called my husband looking for a POA for this woman after she had been there two days. They realized that they had a patient with the wrong identity. My medical record is comingled with the other patient, records, reports, diagnoses have been sent out to MANY doctors with my demographic information. To start with, rights violated include: right to privacy, right to correct information, to be treated fairly and the list continues. It is extremely fortunate that I did not enter the hospital and need care as my medical record now reflects a serious diagnosis I do not have. Likewise, it APPEARS the hospital did not treat this patient for a diagnosis I have for a serious medical problem although that has not been confirmed. Where do I go from here? I need an advocate to ensure ALL insurance (billing, notes, diagnoses, etc.) have been retracted if they were for this other patient and there have been a number of claims paid out. I need to ensure my medical records and trail of distribution of such records has been cleaned up to reflect just me, I need to understand what I need to do and how to do it.
Submitted: 1 year ago.
Category: Legal
Expert:  TexLaw replied 1 year ago.
Hi,

Thank you for your question. I'm very sorry to hear about this dilemma and hope we can provide you with some useful information.

The right to privacy in your medical records is protected under federal law by HIPPA. This law requires that there be no release of your medical records without your authorization.

HIPPA also provides you with the right to correct mistakes in your medical record through a request to the medical provider.

Finally, HIPPA provides you with a right to access all of your medical and insurance billing records held by the medical providers which made the mistake in this case.

You've stated that you have already made contact with both of the hospitals.

Have you requested that they provide you with a full copy of your entire medical record during the time period at issue so that you can check for yourself what charges they have made to your insurance account?

Also, your health insurance carrier should be very interested in working with you to correct this issue. Have you contacted it to inform it of the problem? If so, what was its response?

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4164
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 13 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

I understand, to some extent, several of my HIPPA rights have been violated. Both hospitals have stated they would correct my medical/insurance files but that exercise has not been completed as of yet.


 


I have contacted the insurance carrier. They told me they would retract claims as of 7/2 but have not done so yet. There are now an additional 8 or so claims on top of that. How do I know what questions to ask to ensure separation of records, etc. when I can't see them? All I can see are my EOB's and claim status.


 


I'm sure there are other documents, calls, verifications that occured but, I'm in the dark when I'm on this side of the fence. As an example, I thought to ask the insurance carrier about this being applied to my lifetime maximum but I was lucky to have thought of that question. I simply don't know all the questions to ask to verify a total 'clean-up' has occured.


 


There will be checks sent to insurance from providers so there will have to be some backup data explaining the issue but how much? In what areas will that description of the problem exist? In what areas of the insurance world, and the great computer in the sky, would an erroneous diagnosis be given and such diagnosis need to be retracted?


 


Additionally, I don't have an intimate knowledge of how a hospital distributes records, corrections, etc. I can ensure my medical record is clear of the other patient's information visually however how can I ensure there is no other information associating me with the other patient if I don't know what to ask to see?


 


I also want to ensure that if I entered the hospital in the future that my records are mine. Nobody will be pulling up the other patient or providing treatment on me in line with the other patient's diagnosis. This is the main hospital in my city and I'm now scared to enter it.


 


The Risk Manager drafted a letter to send to Providers requesting retraction of documentation and billing for my review prior to sending out. Unbelievably, they put another erroneous birthdate down. I am now older than my father! They spelled my last name incorrectly. These are basic areas that should be absolutely correct at this stage in the game. Where and what are the other areas I should be concerned with?


 


I understand there is no compensation for violations of HIPPA but how do I get an advocate/attorney to help me without having to pay for it?I have already put in a tremendous amount of my time in documenting phone call, email, timeline, etc. Can I be compensted for that?


 


I want to be able to rest easy that the hospitals are not only doing things to protect themselves but also have me at the heart of the solution as well. How can they if they can't get my birthdate and last name correct?


 


I need more help and information from you pertaining to the questions I have outlined as well as, the next few steps to take.


 


Thank you.

Expert:  TexLaw replied 1 year ago.
Thanks for your response.

I'll first point out that this may take some time for the hospitals to correct the records. This is obviously an unusual circumstance and is outside their normal parameters of operation, so it may take a while for the requests to go through the chain of the hospital administration and then down to the doctors who will have to look at the records and make the actual corrections.

You've raised several issues which I address separately below.

Q: How do I know what questions to ask to ensure separation of records, etc. when I can't see them?

A: You have a right to request a copy of your medical record from both the hospitals. These records will contact the billing information which was sent to your insurance carrier. If there is billing for procedures which were not performed on you, you will be able to identify them and then notify your insurance carrier accordingly so that it can correct its payments and records. So, to do this, you need to reach out to your contacts at the hospital and tell them that under HIPPA you are entitled to a full copy of all medical records in your name upon request (you may have to pay for the charges for copying, but you should ask that these be waived given the circumstances). I would ask for all medical records in your name from a date a few months prior to the ER service of the unrelated patient. This way, you can see for yourself whether there are any remaining corrections to your record which need to be made.

In regard to your health insurer, since you have informed them of the situation, the health insurer will take the rest of the action needed to make sure that the claims are straightened out. The insurer has a vital interest in making sure it only pays out correct claims, and it is it's duty (and its problem) to ensure that this matter is ironed out correctly. The only thing you must do here is inform the insurer which claims were not submitted for services performed to you personally.

Q: As an example, I thought to ask the insurance carrier about this being applied to my lifetime maximum but I was lucky to have thought of that question. I simply don't know all the questions to ask to verify a total 'clean-up' has occurred.

A: Other than informing the insurer which claims are false, you should also submit a written request to the insurer for a statement of benefits paid under you lifetime maximum, to double check that this is correct. If your insurer does not correct this problem and there is any effect on your coverage, you may sue the health insurer for negligence and breach of insurance policy. However, this would not be a claim you can make until there is actually a denial of coverage as a result of the mistake. The alternative would be to file suit against the health insurer for a "declaratory judgment" wherein the court would correct the health insurance record itself, but this should be seen as a measure of last resort only, as it would involved substantial expense to you up front (which you may later be able to recover).

Q: There will be checks sent to insurance from providers so there will have to be some backup data explaining the issue but how much? In what areas will that description of the problem exist? In what areas of the insurance world, and the great computer in the sky, would an erroneous diagnosis be given and such diagnosis need to be retracted?

A: As to what benefits have been paid out under your policy, this will be listed in the statement of claims paid which you should request from your insurance company. Any other documents regarding the actual payment of these claims are not relevant to your concerns (it is the insurer who has an interest in these documents only, as they are the ones with the rights to retract the payments made). Your primary concern here is that your medical record is corrected to remove any treatment performed on the unrelated patient and to make sure that any diagnosis is not listed there. Secondarily, your concern in regard to your health insurance information is that the policy correctly shows that your claims history is corrected to remove the treatment and diagnosis of the other patient. In that regard, you want to request a copy of your claims file. The insurance company will not be obligated to provide this to you unless you sue them, but it may agree to provide it to you so that you can double check their corrections.

Q: Additionally, I don't have an intimate knowledge of how a hospital distributes records, corrections, etc. I can ensure my medical record is clear of the other patient's information visually however how can I ensure there is no other information associating me with the other patient if I don't know what to ask to see?

A: Medical records are now for the most part electronic. Thus, the correction of the record in the hospital's database will correct the record going forward. When you request a copy of the records from the hospitals, you will be able to look through for yourself to see that there is no incorrect information. Anything incorrect that you find should then be pointed out to the hospital along with a written demand for correction.

Q: I also want to ensure that if I entered the hospital in the future that my records are mine. Nobody will be pulling up the other patient or providing treatment on me in line with the other patient's diagnosis. This is the main hospital in my city and I'm now scared to enter it.

A: The only way to ensure this is to request a full copy of your medical record held by each hospital and to look through the entire record to make sure that the corrections were made. These records are held in each hospital's computer system and are not distributed to other providers unless there is a request in connection with treatment being rendered to you. It is not yet a unified record which is accessible to all providers instantaneously, if that helps clear up the issue.

Q: These are basic areas that should be absolutely correct at this stage in the game. Where and what are the other areas I should be concerned with?

A: You want to make sure that the insurance information stated on the letter is correct as well (policy number and any information identifying you). It sounds like you are dealing with incompetence by the hospital administration unfortunately.

Q: I understand there is no compensation for violations of HIPPA but how do I get an advocate/attorney to help me without having to pay for it?I have already put in a tremendous amount of my time in documenting phone call, email, timeline, etc. Can I be compensated for that?

A: Unfortunately in this situation, there is no free legal help which is available and there is no compensation available for your lost time and the trouble of dealing with the situation. Unless the hospital causes you physical harm by treating you incorrectly because it failed to correct your medical record, or unless your insurance company refuses to cover your claim because of the incorrect records, then you do not have any legal claim which would trigger compensation damages due to you.

In summation, the next steps to be taken are:

1. Request full copies of your medical record held by each hospital going back to prior to the last treatment dates you actually had, in order to check to see that the medical records are correct.

2. Request a written statement of claims paid on your policy from your insurer in order to check to see if the corrects have been made and to point out to the insurer which claims need to be removed from your claims history.

3. File a complaint with the Department of Health's civil rights office for violation of HIPPA by the hospital. http://www.hhs.gov/ocr/privacy/hipaa/complaints/index.html

Please let me know if you need further information.

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