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Medical Record Review to Determine Malpractice in Remote Prescribing

Remote PrescribingIn any medical malpractice case, medical record review is a significant procedure that helps to determine whether the physician is responsible for the injury caused to the patient. Well-documented and organized medical charts help to provide clear information regarding the type of injury, treatment administered, results of the treatment and so on. Providers have to be extremely careful when prescribing medications, especially so when prescribing controlled substances.

Recent news highlighted the possible impact a case pending in the Fifth Circuit Court of Appeals may have on providers who use telemedicine to prescribe controlled substances. This is because remote prescribing of controlled substances is subject to the federal Ryan Haight Act including whether or not an in-person examination is needed before remote prescribing. The issue is whether the Drug Enforcement Administration (DEA), in its effort to determine whether a provider violated prescribing laws for controlled substances, can obtain and review medical records without a warrant. The DEA, which claims it is appropriately exercising its statutory authority, is looking to obtain medical records for the patients of a Texan physician. In this case, the District Court ruled that the DEA could obtain the medical records without a warrant or probable cause. The Texas physician appealed the ruling. According to this provider, forced disclosure of private medical information may have a negative impact on patients’ willingness to openly share such information with their provider. The DEA, firm in its stand, argues that unless it is given access to such information, it would not be able to investigate potential criminal activity in the healthcare industry.

The case is significant because if the Fifth Circuit rules in favor of the DEA, you can expect to see similar administrative subpoenas being issued with greater frequency. The request will be for medical records related to the investigation and specific request may be made for identifying information. On the other hand, if the Fifth Circuit rules in favor of the Texas physician, the DEA will not be able to obtain private medical records via subpoenas. From the point of view of medical malpractice cases, such a ruling may result in narrowly defining the scope of relevance for investigations of the DEA, necessitating certain redactions before sensitive healthcare information is produced. The DEA may however be allowed to obtain relevant records related to its investigations via a search warrant and other procedures designed to protect individual rights.



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