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Unlocking the "Secrets" of Medical Records

By Shirley Eileen Fitzgerald, RN

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.

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