Although clearly essential for medical
negligence cases, medical records can also be useful in many
other types of cases. Beyond the accident report in personal
injury cases, what did the injured party actually endure and why
were pain medications withheld until after the patient was
admitted to the hospital? After the fact, each divorcing parent
can usually find an expert to hire who will testify that he/she
is the better parent, but who was actually the primary caregiver
before divorce became a consideration?
Your client has never
been known to drink alcohol and is now charged with DUII, but
where can you find a defense? When did the patient first become
aware of the probable cause of the injury for statute of
limitations purposes? The answers to each of these questions is
most likely contained in medical records fraught with examples
of poor penmanship, strange abbreviations and laboratory
tests.
There really are no medical secrets, but the
organization of information within a medical record remains a
mystery to those without specialized training. For litigation
purposes, the redundancy of medical records offers a substantial
advantage to attorneys seeking the true facts of the case.
Everything from the names of attending personnel to vital sign
records typically appear in more than one place in the patient's
chart and conflicting statements can often lead to a discovery
of records alterations. A thorough chart review can even
determine what the patient was wearing at the time of an
accident or other hospital admission.
So if there are really no medical secrets,
why does it take so long for us to get patience records sent to
our law offices ? To answer this question, you need only know
the difference in hospital procedures for releasing a prior
medical record to the hospital floor where the patient is
currently confined, releasing a copy to the patient's new doctor
and releasing a copy to anyone associated with an attorney's
office. Medical records can be transferred to various places
within the hospital in a matter of minutes. Copies can be
released to a new doctor within a day or two. If a chart is
requested for review by an attorney it can easily take up to two
weeks before it can even be copied.
My standing orders (given
verbally, never in writing) as a medical records clerk required
me to notify the attending physician immediately of all attorney
requests or subpoenas and allow the MD time to "clean up" the
chart before it was copied for the attorney. Common excuses by
medical records personnel buy time include stating that the
requested record will have to be obtained from storage, is
currently being reviewed (peer review, quality assurance
committee, etc.) or used for statistical research. If the
attending physician feels there may be some liability issues
involved, he/she will frequently request that hospital counsel
also review the chart before releasing it for copying. Lack of
"consent" is another dodge records clerks are instructed to use
to methodically eliminate certain documents from the chart prior
to copying...e.g., you failed to mention lab reports or nurses'
notes specifically in your client release, so they are not
included. *
I encourage attorney-clients contemplating medical
negligence to have clients release hospital records to a primary
care physician first before requesting a copy for an attorney.
Comparisons can then be made to detect potential alterations.
On-site reviews of original medical records are also very
valuable where copy quality creates legibility problem or
alterations may be suspected. The colors of inks, pen pressure,
handwriting and even the number of pages in the original records
compared with the number of pages sent to the attorney can prove
to be most enlightening with respect to cooperation with
discovery and potential alteration of evidence once litigation
is undertaken.
Nurses' Notes which have long been a source
of confirmation and augmentation for physician progress notes
are rapidly being eliminated. Notably Sisters of Providence and
Portland Adventist are among those hospitals which have recently
reduced Nurses' Notes to computerized, pre-selected words and
phrases to document patient care and limit the potential for a
nurse to relate subjective information which is not only
essential to optimal patient care, but has been so useful for
litigation in the past.
OK, it's obvious that you only have a few
cases per year that could really benefit from an RN Consultant,
now how do you find one who is qualified? Most of the larger
legal firms have Registered Nurses on staff to assist them in
the often voluminous task of "discovery". Several independent RN
Consultants are now available to assist the smaller firms on a
contract basis. RN Consultants typically advertise in the legal
journals and bar association publications. Request their
marketing brochure or curriculum vitae, a sample of their work
(records summary, research, or chronology of care), a list of
attorney references and fee schedule. Unless you have a very
clear cut case involving only one medical specialty, it is often
best to choose an RN Consultant with a broad nursing background
for your initial review.
RN Specialists can be obtained later
for specific testimony. Be sure to screen potential RN
Consultants for conflicts of interest as many independent
consultants work for both plaintiff and defense attorneys, a
fact that often increases credibility. Be honest with your
consultant about any deadlines in the beginning. Most
independent RN Consultants will start with a preliminary review
of records to assist you in determining the viability of the
case as reflected by the records. If you work well together on
the preliminary review, your consultant search is probably over.
Communication is critical. If you're not comfortable with the
individual style of one consultant, you may wish to seek out
another consultant to help you complete the case.
Many independent RN Consultants do more than just record reviews.
Clarify what specific services you need and what evidence you
are seeking from within the medical records. One attorney I work
with simply tells me what information he has, what he hopes to
prove and then asks for my ideas on how we can use the
combination of medical records, displays and experts to
accomplish that goal. Some RN Consultants have creative talents
in locating courtroom exhibits. Most are excellent teachers and
will help you understand the specific injuries or disease
process and treatments involved so that you in turn, can
accurately explain it to a jury. Still other RN Consultants are
able to help you determine the cost of future care for the
client whose damage award depends upon knowledge of such
numbers. Most will help you prepare questions for depositions of
experts and some have contacts to locate testifying
experts.
Clear communication of your evidence needs,
selection of an experienced RN Consultant and a complete consent
for records release are the keys that will allow you to unlock
the "secrets" of medical records for effective use as evidence
in litigation of most any nature.
*Suggested consent format available upon
request from the author by calling (503) 629- 5109.
This article was published by John Cooke Insurance Fraud Newsletter, St. Louis Lawyer, Washington Journal.