Medical Evidence in Litigation

By Brian McCaffrey

The need to obtain and correctly use medical records is not limited to the personal injury lawyer or the medical malpractice attorney. Recently, one of my colleagues, who is an estate lawyer, successfully used medical records to prove that a transfer of real estate was invalid owing to the medical incompetence of one of the parties involved. In another example, a tax attorney used medical records to prove that his client lacked the mental capacity for fraud. And yet another colleague, an entertainment lawyer, successfully used medical records to disprove an insurance company’s claim that his client was well aware of a disqualifying medical condition. No matter what area of law you practice, the time will come when the ability to obtain and use medical records will be crucial for the representation of your client.

Obtaining Medical Records

Once you have determined that a person’s medical history and medical records may be useful for your case, the first thing you must do is acquire a complete copy of the records.

If the person whose records you are trying to obtain is your client, the process is fairly easy. The client, or the client’s relatives, will be able to tell you which health care organizations (e.g., hospitals, doctors’ offices, clinics, etc.) provided the treatment, and you can proceed to obtain those records in a relatively informal matter. If the records belong to an adversary or a non-party, however, you will need to rely on a court proceeding to obtain the information or obtain it through regular discovery in the lawsuit or pre-suit disclosure.

Regardless of whose records you are trying to obtain, you must submit a form that complies with the Health Insurance Portability and Accountability Act (HIPAA). Under HIPAA patients and their legal and authorized representatives are entitled to review medical records pertaining to their own medical treatment. I normally prefer to have my clients attempt to obtain their own medical records because requests from patients themselves do not set off all the bells and whistles at the health care organizations that a letter from an attorney does. Once you have rung that bell, you will need to deal with excruciating delays and the possibility that defensive entries will now be made in the records.

Believe it or not, I have found that health care organizations still will ask for a HIPAA form even when it is the patients themselves requesting information. Most bar associations have, in cooperation with the medical community, agreed upon standard HIPAA authorization forms. For example, in New York State, the approved HIPAA form can be found in the supreme court section of

Every request for the release of medical records must follow certain guidelines:

1. The request should be written on letterhead stationery if it is a request from an attorney, or it must contain the complete name and address of the patient if the request comes directly from the patient.

2. The request should include the patient’s signature; if the patient is deceased, incompetent, or a minor, a legally appropriate individual, such as the parent, estate administrator, or legal guardian, should sign.

3. The authorizing signature should be validated with the stamp of a current notary or commissioner of deeds. Although your HIPPA form may not require such notarization, I recommend it in order to avoid having your request rejected. Some states require that the notary have a raised seal on the document.

4. The request should include a special release form (compliant with any state and federal requirements) for patients being treated for psychiatric illness or alcohol or drug abuse or for any patient whose medical records document any HIV- or AIDS-related information. The HIPAA form approved by the New York State Bar specifically has a checkoff for those items, and failure to initial them will result in the provider excluding them from the record.

Don’t limit your requests to hospitals. In many jurisdictions, doctors’ practices keep copies of medical records for as long as six years. Also, be sure to send an appropriate request for medical records to the insurance carriers who paid for treatment.

The best resource for getting medical records and evaluating them is an experienced nurse paralegal or nurse attorney. There are also resource guides and websites available for the general practitioner; for a list, see “Ready Resources” on page 54.

Processing the Responses

For each health care provider, set up a folder to store a copy of your request for records and a copy of the previously executed HIPAA form. Organizing your documentation this way will make life a lot easier when the responses come back—most record responses will include medical records from other medical providers that became part of their own records.

When you receive a response, you must review the record for completeness. Pay particular attention to the presence or absence of certain items that may be relevant to your case, such as a typed operative report or a pertinent laboratory report. If anything essential is missing, contact the medical provider. It may be possible that some items have been misplaced or not yet found. In such cases you should determine whether the provider’s particular medical departments have maintained a log of tests performed and the results.

A typical medical record might have the following components (this is not an all-inclusive list): history and physical; physician’s progress notes; physician’s order sheets; nurse’s notes (general and special care unit); graphic and flow sheets (pulse, temperature, respiration [PTR], intake and outtake [I&O], activities at daily rhythm [ADL]); medication records; nursing care plan; laboratory transfusion and X-ray reports; surgery documents; consultations; emergency department records; records of special health care disciplines (e.g., physical therapy); consent forms; discharge summaries; and autopsy reports.

Many health care organizations do not consider certain clinical and miscellaneous documents to be part of the medical record, and you must specifically ask for them if they are important to your case. The clinical documents that are often not considered part of the medical record, unless specifically asked for, are listed below in alphabetical order:

Cardiac catheter laboratory technician records.

Cardiothoracic surgery (bypass) pumps records.

Dialysis flow sheets.

Epidemiology logs.

Fetal monitoring strips.

Hospital bylaws.

Implantable devices.

Incident/occurrence report forms. These reports contain details regarding the who, what, when, and where of an occurrence and are a valuable source of information.

Needle and sponge count. These counts are performed by the scrub and circulating nurses. It is important to review the count when a case involves a retained foreign body.

Nursing administration’s report. This report contains information on patients who are very sick or who have special problems. Information from the nursing administration’s report sheet may supplement occurrence reports or the information contained in the patient’s medical record.

Nursing assignment records. This information is useful in supplementing the nurse’s notes or progress notes to identify the nurses caring for a patient on a particular day.

On-call schedules.

Operating room circulating slips. These forms contain the names of individuals present during a surgical procedure. Sometimes people are there who shouldn’t be present.

Other departments’ records. These other departments might include social services, occupational therapy, physical therapy, pharmacy, and anesthesia.

Patient data logs. Some departments maintain logs or computerized databases that include the names of all individuals whom they have treated. These departments usually are operating room, delivery room, emergency department, outpatient clinics, radiology department, cardiac catheterization department, laboratory, blood bank, and donor bank.

Private-duty nursing logs. These logs can help identify a private-duty nurse for an interview. They are often missed by the hospital when they do their investigation.

Psychiatry flow sheets. Most psychiatric units use some form of flow sheets to monitor patient activity throughout the day. Patients who are at risk for suicide or for going “absent without leave” are monitored frequently by the staff to verify their presence on the unit. Usually the staff performs these types of patient checks anywhere from every 15 minutes to once an hour. These flow sheets may not be kept for a long period of time; therefore, it is important that they be requested immediately.

Health care organizations also maintain various miscellaneous documents that are not related directly to clinical treatment of the patient. These records are:

Biological engineering records. The biological engineeringdepartment maintains records of maintenance and equipment repairs throughout the hospital, as well as work orders and request logs. Such records are helpful when you are investigating a patient or non-patient injury that involves equipment-related occurrences.

Contracts and agreements. Organizations maintain many different contracts and agreements with outside parties, vendors, and groups such as physician groups, HMOs, and other health care organizations. These documents often contain a helpful “hold harmless” clause.

Crises management records and reports. These documents detail extraordinary events such as fires and natural disasters.

Medical staff bylaws. These generally outline the duties and responsibilities of the medical staff and the requirements for maintaining medical staff privileges.

Patient bills.

Physician credentialing files.

Root cause analyses. An institution known as the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) requires all accredited health care organizations to identify, report, and respond to serious patient occurrences. They call such occurrences “sentinel events.” All health care organizations must complete a root cause analysis of such an event. The root cause analysis may be a good source of information for the attorney. Check your local laws, however, to see if you are permitted to obtain copies of these documents. Some institutions attempt to identify them as privileged “quality improvement” documents rather than “incident reports” in order to prevent attorneys from obtaining them. Often the institution arguably waives such a privilege by giving the document wider distribution than should be permitted under their statute. Keep this in mind at the deposition or interview when you ask a medical provider what documents he or she has reviewed.

Training/assessment files. These files are generally kept in a nursing department and may also serve for other clinical specialties. The files contain educational programs, the names of individuals who have completed them successfully, and which procedures they have the credentials to perform.

Reviewing the Records

When you have got what you believe to be complete copies of the medical record, read through the record in its entirety. At some point during your review, you may need to research an unfamiliar subject or contact the appropriate medical specialist. (See “Deciphering Medical Specialties” on page 26 of this issue.)

As an attorney, you should review the record for your own purposes and for your adversary’s purposes. Identify the people involved in the occurrence and make a list of questions to ask each person who might be interviewed. Scrutinize every word that describes the details of the occurrence; writing in the margins, identify inflammatory or angry notes and discrepancies in notes.

At some point in the litigation you will be entitled to look at the original documents; at this time look for any alterations or questionable entries, missing pages, scratching out, writing over, and the use of different-colored inks and correction fluid.

Everyone has his or her own organizational system and preparation process. The following methods have been recommended by professional medical review investigators and are useful when an attorney or the nurse attorney/nurse paralegal is reviewing medical records.

• Photocopy the records so notes can be written on the copy.

• Alternatively, use self-stick notes to make comments on individual pages; do not write on the record itself.

• Use paper clips to divide the records.

• Number the progress note pages on the copy if that has not already been done.

• Pull the photocopied chart apart and put it into organized sections so that different sections can be easily cross-referenced (such as doctor orders and laboratory reports).

• Mark pages with important names, dates, and any other information that would be referred to during interviews or depositions.

• Create a time line.

Reorganizing the Records

Now that you have reviewed the files and are ready to proceed to depositions, make sure to reorganize your medical records. With respect to hospital records, organize each hospitalization individually by date of admissions. For multiple admissions to different facilities, organize them by facility. Use a binder and medical records tabs. When you are dealing with records from a physician’s office, organize them similar to hospital records, if possible. Look at the new patient history form that each doctor should have filled out for each new patient.

Separate out the progress notes and the correspondence and medical records excerpts from other providers and billers. Often there are hints that something went wrong with the production of the records, requiring you to look at the originals. Look in particular for: notes written on the same date but with different ink or different slant to the handwriting; change or difference in the alignment of the notes; writing that is crowded around other entries; words that are written over, under, or around original entries; billings that don’t match the treatment records; records that don’t make sense chronologically.

Using the Records

Prepare an outline for what you want to do with the medical records. In the case of a medical malpractice or personal injury lawsuit, insist that the original records be provided at the actual deposition. Most jurisdictions only provide for the provisions of copies prior to the deposition. Alterations to the records are not always obvious in a photocopy. Be sure to compare your copies to the originals.

When conducting a deposition of medical providers, be sure to ask them if they believe the record to be complete and accurate. Also ask them what medical records they have reviewed in preparation for the deposition, as this often leads to a new line for investigation or perhaps a waiver of privilege. Don’t forget to ask medical practitioners whether they maintain copies of the medical records.

After you have conducted depositions and are ready to go to trial, you now must ensure that you can get these medical records admitted. Each jurisdiction has its own particular rules, but generally you must meet the following requirements to get a medical record or a portion of a medical record admitted:

• The record must be an original copy or, if not, a certified copy of the original.

• The record must be a complete and accurate copy and must be certified as such.

• The use of the record must not be barred by privilege—in other words, you already should have obtained a waiver of this privilege.

Be sure to serve the custodian with a subpoena duces tecum. As a rule, courts don’t allow attorneys simply to walk in with their own set of medical records and offer them up for admission. This may happen should the attorneys, as a matter of courtesy, stipulate to the admissibility of records; don’t count on it, however. Even if you and the other attorney agree to it, the judge may not allow it.

In my particular jurisdiction in the state of New York, a subpoena that is served on a hospital must be so ordered by the court. The resulting records will be returned to court with the hospital’s certification that the records are admissible according to New York State rules. I have found as a matter of practice that it is best to provide the appropriate certification forms with your subpoena so the records keepers fill those out in addition to their own particular institutional forms. You’d be surprised how many hospital certifications do not comply with the statutory rules for the certification of admissibility of medical records. Also keep in mind that many jurisdictions distinguish between the admissibility of medical records produced by a hospital and those produced by a private medical provider’s office.

Many jurisdictions require the custodian of the records of a doctor’s office to come in and testify that these records are kept in the ordinary course of business in order to get them in under the business record exception rule. Again, this particular rule is often done away with by stipulation of counsel that they will agree to the admission of medical records from a doctor’s office and that subpoena will not require the actual records keeper to appear. This professional courtesy with respect to doctors’ offices is generally encouraged by the trial judges.

Most jurisdictions require the following foundation for the admissibility of hospital records: The record must be a regular form of entry kept in the regular course of business of a hospital; the particular entry must be made in the usual course of business; the entry must be made close in time to the fact that it purports to record. Surprisingly, most hospital certifications are deficient in some respect.

Keep in mind that objections may be made to particular parts of a hospital record if the entry in a hospital record is not relevant to diagnosis and treatment. Because the following portions of hospital records are relevant to treatment, arguments can be made that they are admissible: dates of admission and discharge, symptoms, past medical history, present complaints, diagnosis, prognosis, treatment, history if relevant to the diagnosis and treatment, conclusions constituting the opinions of experts (e.g., a doctor’s statement that a patient is malingering), nurses’ notes, progress notes, lab reports, X-ray reports, and entries of observations or admissions indicating consumption of alcohol. Statements of non-expert opinions not based on observation are not admissible, nor are letters and data obtained from third persons admissible as part of hospital records.

Depending on your jurisdiction, you may also need to check whether or not a medical record is considered hearsay in itself or whether you have to establish a foundation for hearsay exceptions. In most jurisdictions, a statement made for the purpose of getting medical treatment is considered an exception to hearsay. In federal court under rule 803(4) and 803(3), even a statement made to persons other than those immediately able to render medical assistance will be admissable if it was made for the purposes of obtaining medical diagnosis and treatment.

For example, a statement made by a child to police officers as to how her mother was injured and whose mother was unconscious at the time and needed medical treatment was considered admissible under the rule 803(4) exception. Likewise a statement in the patient’s medical history portion of a medical record made by the patient or someone attempting to obtain medical treatment on the patient’s behalf is considered admissible despite the rule against hearsay.

However, be cautioned that when nursing notes or other medical records contain observations on the patient’s mental state, consciousness, or intoxication or admissions against interest by the patient, many jurisdictions require that the nurse or medical professional who entered the notes be available to testify in court as to the circumstances surrounding that entry. Therefore, when you want to use such an entry at trial, be prepared to identify and subpoena the person who made the entry.

X-rays, MRIs, CAT scans, and other diagnostic tests and films often have their own statutory rules for admission, and many hospitals will tell you they don’t consider them to be part of the medical chart or record. Check your local rules for the actual foundation requiring such materials to be admitted. For example, in my jurisdiction it is required that the X-ray or diagnostic films must have the names of the patient, the doctor, and the facility that conducted the test, as well as the date thereof on the actual film. Additionally, many local rules including those of my jurisdiction and the federal court permit you to have such films and such diagnostic tests admitted as evidence without bringing in the actual person who took the films or certification, provided you serve a copy of your intent to admit such films at trial on your adversary and permit him or her the statutory time to examine said films in your office.

Parting Advice

Below are some final caveats with respect to medical records:

Be aware of the “subject to connection” admonition, which many judges impose on medical records that you think have been admitted at trial.

Despite your diligent efforts, you may find that many medical documents and many impressive narrative reports and diagnostic tools will not go to the jury because you have failed to introduce the proper testimony of a competent medical expert to explain them to a jury.

When your case is over and the time for appeals has run, don’t forget to send letters to the providers revoking the HIPPA or other medical authorizations you gave on your client’s behalf. When your record retention requirements have been fulfilled, be sure to properly dispose of these records. We shred ours in the office.

Ultimately, the use of medical records in your practice can be time consuming and expensive, but if done properly you and your client will realize it was more than worth the effort.

Brian McCaffrey is a trial attorney whose practice focuses on defending medical institutions and medical professionals in Medicare/Medicaid fraud, medical malpractice, and employment cases. He is a founding member of Leffler Marcus & McCaffrey LLC in New York City and may be reached at .

Copyright 2007

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