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Understanding Medical Records In The Twenty First Century THE OATH OF HIPPOCRATES which has governed the medical profession for more than 2,000 years provides:All that may come to my knowledge in the exercise of my profession or outside of my profession or in daily commerce with men, which ought not be spread abroad, I will keep secret and never reveal.Rush Limbaugh v. State of Florida, Case No. 4D03-4973, D. Ct of Appeal, 4th District, Brief of Amicus CuriaeINTRODUCTION ? Patient care documentation and medical record storage are in a state of transition with the increasing conversion of these documents from paper to an electronic data base. Regardless of whether the records are stored in this type of sophisticated format or handwritten, every time a person receives medical treatment, a record is made of that visit. This office note should chronicle the patient’s complaints, the physician’s observations, and outcomes as well as any treatment plan. It would, therefore, appear that counsel should have an easy time in retrieving and analyzing an individual’s medical records. Nothing could be further from the truth. The American Medical Association’s Code of Ethics mandates that information disclosed to a physician during the doctor-patient relationship is “confidential to the utmost degree.” The purpose of this rule is to allow the patient to make a complete and frank disclosure of information knowing that the health care provider will protect the confidential nature of the information. This requirement has also been turned into law by federal and state statutes which prohibit the disclosure of confidential patient information unless very specific conditions have been satisfied. This point is especially true since the enactment of the Health Insurance Portability and Accountability Act (HIPAA) which took effect on April 14, 2003. Patients have now gained unprecedented safeguards concerning the disclosure of their medical information. The Privacy Rule is also said to strike a balance in that it permits the disclosure of personal health information needed for an individual’s care and other important purposes.Once the claimant’s medical records have been obtained, counsel is confronted with a second obstacle – trying to make sense out of what has been recorded. The records may not be arranged in a uniform fashion, abbreviations abound, handwritten comments are often illegible, and procedures will be listed by diagnostic codes.As one may remember from law school, understanding court opinions required a little time. Deciphering medical records present the same challenge. Armed with practice and a medical dictionary, however, attorneys will discover that making sense out of the medical records follows a learning curve that can be mastered. This chapter will offer suggestions on how to make the medical record retrieval process easier and will offer tips on how to understand those documents.THE CONVERSION TO ELECTRONIC MEDICAL RECORDS ? A major documentation change is taking place within the practice of medicine. Health care providers are converting medical records to a paperless system as the result of the American Recovery and Reinvestment Act of 2009 (Recovery Act). This legislation intends to improve the nation’s health care system by promoting the meaningful use of electronic health records (EHR), also termed electronic medical records (EMR) by dangling “carrot” incentives for seeing Medicare patients. Eligible Medicare health care providers who fall within the ambit of “meaningful use” of electronic health records will be given cash incentives. These payments are provided not only after implementing EMRs but also will be given for the process of testing and procurement of a certified electronic health records system. On the other hand, the “stick” to providers and facilities that fail to show certified EMR systems by 2015 will be harsh financial penalties. For example, eligible medical professionals who elect not to comply with the implementation plan will have to forego Medicare Part B payments of 1% in 2015, 2% in 2016 and 3% 2017 onwards.This “stick” of financial penalites may ultimately result in the failure of the Medicare system. Current reimbursement for seeing a Medicare patient runs about 30% of gross charges with commercial payer reimbursement at approximately 60% of charges. At the time of this writing, the government is proposing further cuts in Medicare payments. Medicare’s 2013 physician fee schedule contains a 26.5% pay cut based on the Sustainable Growth rate formula and, for the speciality of neurology, an additional 7% cut in reimbursement. When these low levels of Medicare reimbursement are added to the $1-1.5 million cost of installing and implementing an EMR system required to see Medicare patients, many medical practices will be unable to absorb such financial burdens. Already a 2012 survey of 14,000 physicians in the United States by the non-profit Physicians Foundation found that more than 52% of the respondents have limited their Medicare practice or are planning to do so . Deep cuts in a payment system which already reimburses at barely overhead levels may result in physician office doors being closed to Medicare patients.The government has advanced a number of reasons for this conversion such as electronic medical records can bring a patient’s compete health information together in one place, and always be up to date – clinicians will always know the drugs or treatments prescribed by another provider, so care is better managed; individuals can have their prescriptions ordered before they leave the provider’s office, and insurance claims can be submitted immediately from the provider’s office; and an electronic system can link information with patient computers to point to additional resources. However, some independent studies question the government’s claim since they are unable to determine any significant improvement of EMRs on specific quality measures. Further, with regard to the claim of improved transfer of patient information, a number of different EMR systems are used throughout the United States, with over 20 vendors promoting their systems. These systems range from the larger ones for hospitals and large health systems to the medium to small systems. However, most of these systems are unable to communicate with each other, eliminating the ease of patient information transfer..What does this electronic conversion of medical records mean for the legal profession? This anticipated utilization of EMR systems puts attorneys on notice that they must understand what to look for, where to look, how to access the necessary information, and how to explain to the medical records custodians what documents are missing. The paperless version of medical records should have the same parts as the paper foramt, but some components will be combined, and others may not print out automatically. Often, such as in the Epic system, pages of medically irrevalant information is compiled and stored as well. Counsel needs to be mindful to secure all of the individual parts, because those responsible for assembling the completed medical record will not always realize these records are available, reproducible, or relevant to the patient’s case. THE NEED TO OBTAIN THE MEDICAL RECORDS ● It is important to obtain a claimant’s medical records to ascertain the nature of the injury, to document or refute the alleged medical problem, and to establish a value for the claim. Counsel for the plaintiff must obtain the medical records to investigate the merits of the claim and to properly document the injury. The records are also important so that counsel may learn about adverse health issues, such as prior claims or pre-existing medical problems that may play a role in the current complaints. In this regard, counsel for the claimant has a much easier task in retrieving the records since the client is not adverse and a properly worded and executed medical authorization should suffice. The HIPAA Privacy RuleThe one or two paragraph medical authorization signed by the client is no longer the magic wand in obtaining the records. The authorization must now comply with the HIPAA requirements as set forth in 42 U.S.C. 1301 et seq. The HIPAA Privacy Rule creates national standards to protect a patient’s medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically. HIPAA mandates certain safeguards to protect the privacy of personal health information, and sets limits and conditions on the uses and disclosures that may be made of such information without a patient’s authorization. The Rule, however, does provide patients rights over their health information, including the ability to examine and secure a copy of their health records, and to request corrections. Generally, a health care provider has thirty days to produce the requested records following receipt of a properly worded and executed authorization. Notification must be made if the health care provider can not comply with this time mandate. This time period may be accelerated by state law.How to Expedite Receipt of the RecordsTo expedite the receipt of medical records or to reduce the chances of encountering problems, counsel should check with the health care provider to ascertain if a specific form is required. For example, some hospitals are very demanding in the contents of the medical authorization and will not release the records unless specific language is used. Also, certain records enjoy an additional layer of protection. These include the disclosure of drug and psychiatric information which require a specific authorization that satisfies the appropriate legislation on these issues. For instance, records dealing with substance abuse are protected by 42 CFR Part 2, Confidentiality of Alcohol and Drug Abuse Patient Records and Section 543 of the Public Health Service Act.Many states also have their own statutory scheme for obtaining records which are subservient to the federal laws but may impose additional patient safeguards. For example, Pennsylvania has its own statute on the production of medical records that is set forth in 42 Pa. C.S.A. § 6155: (b):(1) A patient or his designee, including his attorney, shall have the right of access to his medical charts and records and to obtain photocopies of the same, without the use of a subpoena duces tecum, for his own use. A health care provider or facility shall not charge a patient or his designee, including his attorney, a fee in excess of the amounts set forth in section 6152(a)(2)(i) (relating to subpoena of records). Defense counsel has a different thought process in wanting to obtain the medical records of a claimant. While a client can provide defense counsel with a description of the accident, the client can rarely supply accurate or detailed information about the plaintiff’s health. At a minimum, however, counsel should ask the defendant to describe the claimant’s medical condition at the accident scene, find out if the plaintiff was walking around, and ascertain if the claimant admitted that he or she was not injured. Counsel for the defense should not rely on the medical specials submitted to the insurance carrier by the claimant or plaintiff’s counsel. There is no mandate that these records be complete, and plaintiff’s counsel may only disclose favorable information.Once the case is in suit, the defense should always issue formal discovery and obtain answers under oath. Unless court rules mandate the use of specific interrogatories, the defense should always include a series of questions that focus on the claimant’s general health including: Visits to doctors within the twelve months before the date of loss. The name and address of the family doctor. Health insurance information such as the name of the carrier and policy number.The name of the claimant’s pharmacy and its location.The name and policy number of the automobile insurance or worker’s compensation carrier that has paid the medical expenses.Whether the claimant has received benefits from a disability policy.Answers to these questions will provide the defense with a good start in learning more about the claimant’s health and relationship of the claimed injuries to the accident even if the plaintiff is not honest or is evasive in disclosing prior health issues.By obtaining the records of the entities disclosed in response to these basic questions, the defense will obtain a blueprint of the claimant’s health. The family doctor is the person most often seen when a health issue arises, especially in a non-litigation setting. These records may contain treatment about the claimed problem which pre-existed the incident. The documents may also shed light on another medical reason for the claimed injury. For instance, a diabetic neuropathy may cause numbness in an extremity instead of a herniated disk which is claimed to be causing the radiating pain. Pain in the back may be related to Lyme disease instead of the car accident. These records will also contain the reports of prior diagnostic tests and visits to medical specialists. The pharmacy will provide a computerized listing of medication and prescribing doctors. With a little detective work, one can easily ascertain the nature of the medication and the medical specialty of the prescribing doctor. For instance, a patient who has filled a prescription for narcotic medications such as Darvocet, Vicodin, or Percocet within a few months before the accident is having significant pain somewhere in the body. Even anti-inflammatory medications such as ibuprofen, naprosyn, or Celebrex, will provide a clue that the individual is suffering from some type of inflammatory process such as a sprain or strain from a prior accident. If counsel is unsure of a specific drug, the Physician’s Desk Reference (PDR) is a quick and easy reference tool for learning the nature of a particular drug. A medical directory such as Dorland’s can provide a physician’s medical specialty. Counsel may learn that the patient has had prior visits to an orthopedic surgeon or neurologist. The following chart provides a sample of a patient’s medication record:DATEMEDICATIONDOCTOR11/13/11Prednisone 5MG TabletsJones, Marvin12/10/11Mortin 10MG TabletsWeisman, Ira12/20/11Celebrex 600 MG CapsulesWeisman, Ira1/13/12Celebrex 600 MG CapsulesWeisman, Ira1/25/12Prednisone 5MG TabletsJones, Marvin2/05/12Motrin 10MG TabletsWeisman, IraMost people do not like to pay for medical treatment especially when the premiums for health insurance are so high. By retrieving the claimant’s health insurance records, defense counsel will obtain a computer listing of health care providers, dates of treatment, and diagnostic codes. The following is an example:HEALTH INSURANCE RECORDSProvider 1010089 Dr. George Stein Vendor 4404005 Invoice 9378 Diagnosis: 356.90 Idiopathic Peripheral Neuropathy $150.00Provider 3301380 Philadelphia Hospital Vendor 2796677 Invoice 4039 Diagnosis: 353.60 Phantom Limb (Syndrome) $60.00Provider 0225879 Dr. Gary Jones Vendor 4404005 Invoice 9378 Diagnosis: 362.01 Diabetic Retinopathy $150.00Obtaining the medical records from the automobile insurance or worker’s compensation carrier in a third party action is useful since these documents may contain reports of medical audits or independent medical examinations. These records may also contain statements by the parties and potential witnesses, as well as photographs of the vehicles.The Cost of Obtaining Medical Records People have the right to obtain a copy of their medical records but it comes with a price. Health care providers are allowed to charge a fee for making a copy of these documents but those charges are governed by statute. For example, Pennsylvania provides in 42 Pa. C.S.A. 6152 (a) (2): (T)he health care provider or facility or a designated agent shall be entitled to receive payment of such expenses before producing the charts or records. The payment shall not exceed $15 for searching for and retrieving the records, $1 per page for paper copies for the first 20 pages, 75? per page for pages 21 through 60 and 25? per page for pages 61 and thereafter; $1.50 per page for copies from microfilm; plus the actual cost of postage, shipping or delivery. No other charges for the retrieval, copying and shipping or delivery of medical records other than those set forth in this paragraph shall be permitted without prior approval of the party requesting the copying of the medical records. The amounts which may be charged shall be adjusted annually beginning on January 1, 2000, by the Secretary of Health of the Commonwealth based on the most recent changes in the consumer price index reported annually by the Bureau of Labor Statistics of the United States Department of Labor.How will the conversion to an electronic data base by doctors affect these charges? That was the subject of a class action lawsuit in Liss & Marion, P.C. v. Recordex Acquisition Corp. The defendant had contracts with a number of Philadelphia-area hospitals to provide medical record copying services. When a request was made for records stored in an electronic format, the copy service charged the same rate allowed for microfilm, a rate which exceeded that billed for a paper file. This prompted a class action lawsuit alleging that the defendant was overcharging for records stored in an electronic format in violation of the law. The court found in favor of the plaintiff and noted that the copy service charged for copies “from microfilm” when they actually provided “paper copies” of “electronic” documents. They also failed to indicate clearly on the invoices that the original records were electronic rather than microfilm. Indeed, they falsely represented that the copies were from microfilm by using the term “fiche.” An award of $594,301 was rendered in the nature of damages.The Records to Obtain When Investigating a ClaimCounsel should always obtain the full medical records of the claimant and not just isolated pages such as a hospital discharge summary. One never knows what information may be gleaned from even the most innocent appearing record. Defense counsel should not limit a request to treatment records after the accident date. In fact, the medical authorization or subpoena should not contain an incident date. If the health care provider decides only to issue the medical records after the date of loss or to merely provide the accident records, the defense should be persistent is receiving all of the records even if it means issuing a new subpoena, taking the deposition of the records custodian, or issuing a petition for contempt of court. If a sufficient period of time has elapsed since the initial records were produced, consider issuing a new subpoena to obtain updated information. Plaintiff’s counsel may find a medical complication that the client has inadvertently failed to mention which may positively impact the value of the claim. The defense may find a new accident, an improvement in the claimant’s medical condition, or a different medical cause for the problem. TYPES OF MEDICAL RECORDS ● Medical records fall within two general categories: physician office notes and the hospital chart. If an ambulance or emergency vehicle was dispatched to assist the claimant, a record will also exist of that service.PHYSICIAN OFFICE NOTES ? Physician office notes will not follow a uniform format but will contain certain standard types of information which should include:Initial patient questionnaire Progress notesCorrespondence from third partiesDiagnostic proceduresMiscellaneous records The first document in the chart should be the intake or initial patient questionnaire. This form will provide a narrative of the patient’s past medical history, family medical problems, hospitalizations, medication, surgical history, and current problems.During each subsequent visit, the doctor enters a progress note to document the examination. This note may be written or typed depending upon the custom of the physician. It is important to check for consistency of complaints over time and between health care providers. It is common to find variations of complaints among health care providers close in time. These variations make for interesting cross-examination and raise credibility questions.It is also important to ascertain if the notes are mere images of each other with a “boilerplate” format. With the increased use of EHR, some physicians in personal injury cases merely reproduce the same patient’s notes over time. This practice raises questions as to whether the doctor really treated the patient and how detailed the examination could have been when the notes are mere reproductions of each other.Following the progress notes, the records should include correspondence from third parties including narrative reports from other health care providers. These letters which may serve as the consultant’s evaluation provide guidance as to other medical problems or alternative causes for the current complaints. For instance, pre-accident visits to an orthopedic surgeon for a musculoskeletal problem to the same part of the body claimed as being injured will be contained in this portion of the file.Reports of diagnostic procedures should be the next section in the record. These documents will include the results of blood tests and diagnostic procedures such as x-rays and MRIs. The final section of the chart will contain miscellaneous items that cannot be classified neatly into a category. These records include a subpoena in another case, letters from the attorney, or even a statement by the claimant. Health care providers have different ways of recording patient visits. Doctors may record office visits in loosely worded paragraphs or they may follow the SOAP format to provide a uniform recording system. The SOAP acronym stands for subjective, objective, assessment, and plan. “S” is a statement of the patient’s subjective complaints on the date of the examination. For instance, the patient may state that “My neck is still very painful, and I am unable to sleep because of the discomfort.” “O” represents the physician’s objective observations and findings on examination. The doctor may feel a spasm when the patient’s neck is palpated and there may be decreased sensation in the arm when pricked with a pin. “A” is the next letter and refers to the doctor’s assessment of the situation. For example, the doctor may note that the patient has sustained a sprain and strain of the cervical neck with radiculopathy and diminished sensation in the left upper extremity. “P” is the last letter and explains how the physician plans on proceeding with treatment. The doctor may want the patient to undergo three weeks of physical therapy, undergo an MRI of the cervical spine, or return to the office in one month. The following is a sample office note that follows the SOAP format:Subjective: In February, the patient was involved in a motor vehicle accident and hit his head on the back window causing the neck and back problems that bring him here today. He denies any previous problems to these injured areas. He feels comfortable in the morning but the pain increases as the day progresses.Objective:Patient walks with a slightly altered left leg gait and he cannot squat down because of pain in his knee. There is a small effusion in the knee and a limited range of motion. X-rays showed moderate degenerative arthritis of the knee.Assessment:Osteoarthritis superimposed on a left knee sprain and possible internal derangement.Plan:Patient is to go for an MRI of the knee and recheck for possible knee replacement.Even though the SOAP format may create a uniform record, the notes may not be in full sentences or they may contain abbreviations that are unique to that doctor’s office. If counsel cannot understand a note, the handwriting, or an abbreviation, merely contact the doctor’s office for a clarification. Many times the doctor’s staff can instantaneously translate the puzzling words or abbreviation. AMBULANCE RECORD ? When a rescue or ambulance squad is dispatched to the accident scene, a record is made by the crew of their observations and physical examination of the claimant. This is useful documentation since the comments will be from a neutral observer and will document the claimant’s condition at the accident scene without the outside influence of a third person. Spontaneous utterances about the accident may be included and a review of systems will be noted that can be compared with the claimant’s allegations at a later date. This is especially true when a person maintains that she had a loss of consciousnesses (LOC) at the accident scene but the ambulance record notes that the patient was walking around, alert and oriented to person, place, and time without any observed LOC. Southampton Fire DepartmentConfidential Patient Care ReportIncident Number: 591110Patient Name: Mary SmithTransportation InformationDisposition: TransportedDestination: Philadelphia HospitalMVA DataPatient’s Vehicle: AutoImpact Object: AutoComments:Patient Care Report M10 Dispatched from Fire Station for MVA rescue. The patient is a 29 year old female with the complaint of pain. Onset of symptoms occurred while the patient was stopped for a light and her car was struck in the rear by a dump truck. Upon arrival, she was observed walking around at the scene. Cervical collar was applied and patient is A/0x3, negative loc, mid-neck tenderness and left arm numbness. Pelvis stable and extremities have full range of motion. Patient transported without incident and report given to ER staff. PMH positive for prior accident for which patient was still having a symptom in the neck region.Chief Complaint: TraumaPresent Symptoms: PainWorking Assessment: PainDate/Time: 2013-04-27 14:32 hours PB: 137/078 Resp: 20Breathing: L – R YesSkin: Normal, warm and dryGlascow Coma: Spont., oriented, obeys commands 15Pupils: Midr & normOther: Moves all norm < 2 sec. upright HOSPITAL CHART ? Hospital charts tend to be more formal than the records of health care practitioners and will follow a more uniform format. Because of the many rules that regulate hospitals, including the requirement to maintain patient files, the Records Custodian or the Medical Records Department will maintain and safeguard these records. While physican notes in an EMR system will be either typed or dictated by that provider, busy hospitals, especially in emergency departments, may use a scribe to transcribe the provider’s words. If the entry is by a scribe, that person will be identified as such. After the patient has been discharged, the hospital record will be transferred to the medical record department and maintained in both a chronological and sectional fashion. The file is then placed in storage for future reference. Although the order of the materials may differ from hospital to hospital, the individual sections of the chart will remain the same. Also, most hospitals follow the standards established by the Joint Commission of Healthcare Organizations for accreditation purposes so the records are maintained in a more uniform fashion.The individual units of the hospital record include the:Emergency Room RecordPatient RegistrationHistory and PhysicalProgress NotesConsultationsLaboratory Studies and Diagnostic TestsNurse’s NotesMedication SheetsPhysician’s OrdersOperative Notes and Pathology ReportsDischarge SummaryIncident ReportsConsent and Other Miscellaneous FormsEMERGENCY ROOM RECORD ? The emergency room (department) record is a very important document in the investigation of a claim from a motor vehicle accident or personal injury. That document establishes a baseline for the patient’s complaints and will usually contain a statement from the plaintiff concerning the event. In fact, the record may include the person’s exact words as to how the accident happened. This statement can prove helpful if the person subsequently changes the description of the incident to provide a more favorable fact pattern. In an automobile accident, the patient may even be asked to explain the severity of the impact and to provide the speed of the vehicles.Another important component of the emergency room record is the biographical information provided at the beginning of the form. Obviously, this record will contain the person’s name, birth date, and address but it may also list the name of the family doctor, employer, and health insurance carrier. These are some of the key records to subpoena when defending a claim. The job of the emergency room personnel is to treat the patient, so their comments will be recorded in an unbiased and frank manner. They will document the injuries sustained by the patient and will note whether the person lost consciousness or had open wounds. Likewise, the staff will record negative physical findings and will note their observations of the patient, if appropriate. For example, a person who claims to be in excruciating pain should be acting appropriately for a person in that condition. If the person, however, is observed walking around and constantly talking on the cell phone, a note may be entered of that observation because it is contrary to the expected behavior. Likewise, observations concerning the smell of alcohol on the patient will be placed in the record. A blood/alcohol level may even have been sent to the laboratory.Counsel for the claimant should ascertain if the defendant was brought to the emergency room following an accident. If yes, consideration should be paid to obtaining that record. The emergency room chart may contain admissions on liability and will document any health issues that played a role in the accident. Perhaps the person forgot to take important medication or continued to drive the car after feeling dizzy. The record will also document if alcohol or drugs were detected.Other noteworthy portions of the emergency room record include the patient’s chief complaint section. Are the complaints consistent with the claimant’s subsequent listing of medical problems in answers to interrogatories? The records will note the time the patient arrived at the hospital and the method of arrival. Did the patient go to the hospital by ambulance immediately from the accident scene or did the person walk in several hours later? The past medical history section of the record is worthy of review since it may list prior health problems relevant to the current claim such as a pre-existing back problem. Likewise, the failure to disclose a relevant prior health issue provides the appearance that the person is hiding that fact because of anticipated litigation.The emergency room physician has the obligation to order consultations or referrals if necessary to achieve a proper disposition of the case. Basically, there are three patient dispositions: release, refer, or admit. The most obvious order is to merely release the patient from emergency evaluation and treatment. A referral will be made when additional outpatient treatment will be needed, and the patient is directed to a specific doctor or clinic. For example, a patient with a broken arm will be referred to an orthopedic surgeon for follow up care. The remaining treatment option is to transfer and admit the patient to the hospital. Also, the record should contain a notation anytime the patient leaves the emergency room “against medical advice.” This is noted as “AMA” in the record and is important to ascertain in a claim. Although the emergency room evaluation is not as detailed as an in-patient workup, the record should be fairly complete and well-documented. Mistakes in the recording of information during the emergency room visit, however, are often repeated during the patient’s hospitalization since physicians frequently rely on the observations and conclusions of the prior examiner. PATIENT ADMISSION ? The Admission Record is usually the first document in the hospital chart. If the patient does not enter the hospital directly from emergency and the admission is planned, the process is much more structured. The admitting physician will initiate the process by contacting the hospital to check on room availability. The decision to admit will be based upon a number of factors: Medical problemsPast medical historyConcerns that the problem may be life-threatening Abnormal test resultsAbnormal physical examinationUnstable medical signsDiagnosis and prognosisNeed for surgeryRequired care that can not be done on an outpatient basis.Once the date has been cleared by the hospital, a representative of the Admissions Department will contact the patient to arrange for Pre-Admission testing, and a report date and time will be provided.Some hospitals have expedited the process by allowing a patient to complete the necessary paperwork online. The individual merely types in the requested information about biographical data, employment, emergency contacts, insurance, and marriage and then e-mails the form back to the hospital. Other health care providers may call the patient and obtain the information by phone. Upon arrival at the hospital, the patient proceeds to patient registration to complete the final paper work usually called “Terms and Conditions.” This document contains a medical consent form and an authorization to bill the insurance company. Some hospitals may even ask about advanced directives such as “do not resuscitate” or “DNR.”ADVANCE DIRECTIVESDURABLE POWER OF ATTORNEY FOR HEALTCARELIVING WILLThis form permits you to tell us if you wish to select someone to make your health care decisions if you become too ill to tell others what you want done.Do you have such a document? Yes No This form allows you to select whether or not you wish certain treatments (life sustaining measures) if you become too ill to tell others what you want done in your care.Do you want a living Will? Yes No Do you have a copy with you? Yes No Can someone bring a copy? Yes No Does the hospital have a copy from a prior admission? Yes NoWould you like more information or help in completing an advance directive? Yes No If the person is having same-day surgery, the patient is escorted to that department. If the individual must be admitted, the patient will be directed to the appropriate hospital room depending upon the level of care to be rendered. For example, a person may be admitted to the intensive care unit (ICU), the neuro-intensive care unit (NICU), the surgical floor, telemetry, which is a step-down unit for coronary patients, pediatrics, maternity, or the general medical floor depending upon the medical/surgical problem.Entries in the hospital chart differ in format from those made in the emergency room record. Each event in the hospital will be recorded in a chronological fashion in different parts of the chart according to who made the observation, and the nature of the data written. For instance, a hospital physician will conduct an examination of the patient and make an assessment of the patient’s body systems. This evaluation usually concludes with a summary of why the individual is in the hospital and the treatment plan and is detailed in the History and Physical section of the record. An examination by a specialist will be chronicled in that portion of the chart devoted to Consultations. It is also important to recognize that entries are being made concurrently in different sections of the chart so counsel must review the information on a date by date basis. HISTORY AND PHYSICAL ? The History and Physical portion of the chart is the starting point for why the person is in the hospital and the recorder of information is usually an intern or house physician. In community hospitals, this information is provided by the patient’s primary care physician or by a hospitalist. The part of this section entitled chief complaint (CC) will detail the patient’s main problems and will be recorded in the person’s own words. For instance, a patient may report that “I have had severe back pain for six months and was told that I need surgery for a herniated disk.” This notation is followed by the history of present illness, or “HPI,” which sets forth in date order information about the patient’s chief complaints. The patient’s past medical history, or “PMH,” is the next item and will detail past and current illnesses, injuries, prior hospitalizations, drugs, and allergies. A discussion of the family history (FH) is also done because so many health problems have a hereditary foundation. A social history obtained from the patient provides information about the person’s tobacco/alcohol/illicit drug use, marital status, educational background, and employment. A review of systems (ROS) obtained by the examining physician, often in apreprinted form, queries each body system such as circulation, respiration, the gastrointestinal and urinary tracts, and the reproductive organs.A physical examination or “PE” includes vital signs such as blood pressure, temperature, pulse, and respiration. Often body weight and height are recorded and the BMI (body mass index) is calculated. The remainder of the physical examination documents findings upon listening to the heart and lungs, palpating the abdomen, carrying out an abbreviated neurological examination, observations of the skin and extremities. A much more detailed examination of the body system for which the patient is admitted is also performed. The abbreviation “HEENT” in the physical examination refers to findings of the head, eyes, ears, nose, and throat. Recording a patient’s history and conducting a physical examination is sound medical practice, but it is also mandated by insurance companies and certain governmental programs. Medicare and Medicaid require that a physical examination and medical history be done no more than seven days before or forty-eight hours after admission. The hospital record must also contain information to justify the continued in-patient hospitalization supported by a diagnosis and description of the person’s progress. PROGRESS NOTES ? Once the patient’s hospital chart has been created, subsequent entries will be recorded in the progress notes. These remarks are made by the attending physicians and consultants, are usually the most detailed in the record, and represent their observations of the patient on a day-by-day basis. These notes tend to be brief and will usually follow the SOAP format. Entries will also be accompanied by a date and time.In the past, most hospitals only allowed physicians to record entries in the progress notes section of the chart. Therefore, other portions of the record such notes by nursing, physical therapists, dieticians etc. had to be reviewed simultaneously by date and time to gain an appreciation on how events unfolded. By reviewing the progress notes and then referring to the order sheets to ascertain what directives had been issued for diagnosis or treatment, a blueprint is reconstructed through the maze of events. With the advent of electronic medical records such as Epic, all entered information by not only physicians but also associated personnel such as nurses, therapists, and social workers are combined in a chronological fashion. DISCHARGE SUMMARY ? The discharge summary is one of the most frequently requested records by counsel but is the least accurate. Many times, the record is completed by a junior member of the staff or hospitalist subsequent to the patient’s discharge and may be cursory in nature. In fact, the discharge summary may not be dictated for weeks or months after discharge from the hospital. After this length of time, the doctor’s memory of events is no longer fresh, and the summary must be reconstructed from the chart. If the patient had a prolonged hospitalization with complex medical conditions requiring multiple consultants, some of the important details may be missed or excluded as the attending physician attempts to summarize the medical care and hospital course. Also, if the patient suffers an adverse consequence before the discharge summary is completed, the document can be questioned as being self-serving to the extent that it contains exculpatory statements not otherwise contained in the chart. A variety of research studies have been conducted to gauge the reliability, effectiveness, and accuracy of the discharge summary. Most have demonstrated glaring errors in these records. One such study found that the discharge summary was only 63.6% accurate, with errors occurring in all phases of production. Another study reported considerable deficiencies in the completeness of the discharge summaries in 34% of the cases. The following is a sample Discharge Summary:Philadelphia Memorial HospitalDischarge SummaryNAME:John AdamsAdmission Date:05/10/14Number:322798Discharge Date:05/13/14Admitting Diagnosis:Lumbar instability and stenosis Discharge Summary:SameOperative Procedure:L4-L5, and L5-S1 Laminectomy and FusionSurgeon:Jonathan McCoy, M.D.History of Present Illness:Mr. Adams is a 35-year-old man with a two-year history of low back pain following a motor vehicle accident with radiating pain in both legs and feet that follows a classic dermatome pattern. MRI showed a Grade II Spondylolithesis at L4-L5 with instability. Past Medical History:Diabetes and HypertensionPast Surgery History:Herniated disc at C6-C7 with a Laminectomy and Discectomy three years ago.Allergies:CodinePhysical Examination:Within normal limits except for radiating pain down the left leg in an L4-L5 and L5-S1 dermatome distribution and a dropped foot on the left.Hospital Course:The patient proceeded to surgery and underwent a two level fusion with instrumentation. He did well from a neurosurgical point of view and was discharged to home. He will follow up with Dr. McCoy in five days.Dictated by: Mary Robinson, M.D.DT: 9/15/14 At the time of discharge, patients are provided instructions on when they leave the hospital that includes signs and symptoms to look for as well as what to do for follow-up care. The following is a sample:Philadelphia Memorial HospitalEmergency Department - - Patient Discharge InstructionsThis form provides you with information about the care you received in our Emergency Department and instructions about caring for yourself at home. Please keep this form and bring it with you should you need additional treatmentYou were seen by _____________________________________ on _________________ Name of Provider DateYour discharge diagnose(s) was ______________________________________________You have been prescribed the following medications:Medicine - Dose Frequency Purpose a. _____________________________________________________________b. ____________________________________________________________You should/should not continue your previously prescribed medications and treatments: Modifications ____________________________________________________________________ ____________________________________________________________________________________ Special instructions and/or diet ________________________________________________________________________________________________________________________________________________________________________Return to Emergency Department at once if you note: ____________________________________________________________________________________ ____________________________________________________________________________________Preprinted discharge instructions given ________ YES _________NO _________SPECIFY Because of your medical condition, operating a motor vehicle is [ ] UNRESTRICTED [ ] NOT ADVISABLE AT THIS TIMEFOLLOW UP CARE [ ] Call your primary care provider ___________________ or _______________________ to arrange for a follow-up visit with in the next ________ days. Be sure to bring this discharge form with you. [ ] Call 555-PHL-CARE and ask for an appointment with _________________________ within the next _________days. Be sure to tell them that you were seen in the Emergency Department. [ ] You have an appointment with _______________on ____________at ___________.[ ] Call 555-PHL-XRAY on _______________ to get result of the following test(s): [ ] Other: _______________________________________________________________Instructions given by: __________________ _________ ________ Physician Date Time Signature of patient __________________ ________________ Date Time NURSES NOTES ? Nurses have the most patient contact, and they will record their observations each time they visit a patient. This written information can include notations about the patient’s vital signs, pain observations, and notifications to the attending physician of a patient’s worsening condition or need for medication. As noted above, nurses often enter their information in electronic record formats along with the physician notes for the day.ORDER SHEETS ? Each day during a hospital stay, a listing is made of tests ordered by the attending physicians or medications to be given to the patient. Requests for a consultation by specialty physicians such as in cardiology, urology, neurology etc. will also be noted in the order sheets section. Activity level as well as dietary orders including the type and method (e.g. orally, feeding tube) are included. In short, everything related to the patient appears in the order format – either on paper or is electronically entered.OPERATIVE REPORT ? Whenever surgery is performed, the surgeon is mandated to document a preoperative statement as to the purpose, a preoperative diagnosis, and to list the procedure to be performed. For instance, the preoperative diagnosis may be a “herniated nucleus pulposus at L4-L5 “ with the procedure to be a laminectomy and diskectomy. The physician also will briefly describe the history of present illness (HPI). This information is followed by a listing of the actual surgery performed, the findings, and complications. For instance, the actual surgery may end up being a “two level fusion at L4-L5 and L5-S1.” The names of the physicians in attendance are identified followed by a detailed narrative description of the surgery. This part of the record may contain separate reports by the anesthesiologist or anesthetist and pathologist if a specimen was submitted for examination. Other information includes the duration of the operation, estimated blood loss, and complications. This information is the way to minimize or maximize the seriousness of an operation in the eyes of the jury. For example, a carpal tunnel release does not sound so serious if the jury learns that the procedure took 25 minutes with no accompanying blood loss and no complications.The following is a sample Operative Report:Philadelphia Memorial HospitalOperative ReportJohn AdamsDate:12/10/14Number:322798Dictated by: Dr. Peter SmithPre-Operative Diagnosis: Grade II Spondylolithesis at L4-L5 with instability at L4-L5 and L5-S1.Post-Operative Diagnosis:SameProcedure:Bilateral L4-L5 and L5-S1decompressive laminectomies/formainotomies with fixation/ fusion.Surgeon: Jonathan McCoy, M.D.Assistant Surgeon:Peter Smith, M.D.Anesthesia: General endotracheal with 12 cc of 1% Lidocaine.Estimated Blood Loss: 1200 cc and 350 cc were transfused plications:None.Objective Findings:A severely narrowed thecal sac between the L4 and S1 levels.Summary:Mr. Adams was involved in a motor vehicle accident two years ago and has developed intractable pain. During the past month, he has developed worsening neurological complications and his spine has become unstable. He is now brought to surgery for decompression and fusion.Procedure Description:The patient was turned on to the spinal table in the modified knee to chest position. An incision was carried down through the subcutaneous tissue, fat, and fascia. Using a large Leksell rongeur, the spinous processes at L4 and L5 were removed and decompressive laminectomies were completed. Foraminotomies were completed bilaterally for the L4-L5 and L5-S1 nerve roots. Once the nerve roots and thecal sac were appropriately decompressed, attention was made to the fixation/fusion part of the procedure. Pilot holes were made and Steinman pins fitted. Harvested bone was then divided and placed over the appropriate transverse processes. The surgical cavity was copiously irrigated, the skin closed using a running stitch, and sterile dressings were applied. The patient was transported to the recovery room in stable condition. All sponge and needle counts were correct.DD: 12/13/14Jonathan McCoy, M.D.SurgeonMISCELLANEOUS RECORDS ? Miscellaneous records include evaluation and treatment in a rehabilitation department (physical therapy, occupational therapy, speech therapy) and incident reports such as a fall resulting in injuries. An incident report is an important way for the hospital staff and Risk Management Department to communicate over unexpected adverse patient care issues which may result in litigation. These reports are also mandated by certain regulatory reporting requirements and liability insurance carriers. The following are examples of incidents that mandate immediate reporting: blood administration errors, severe medication mistakes, missed diagnosis, infant discharge to the wrong family, and surgery on the wrong body part. CPT Codes ? Current Procedure Terminology (CPT) Codes found in medical records were created by the American Medical Association as a simplified way to describe medical, surgical and diagnostic procedures utilized in the care and treatment of patients. These codes are numbers that are assigned to every patient-directed service and procedure and include all medical, surgical and diagnostic services. The CPT codes can be very specific. For example the CPT code 44960 is for appendectomy, for ruptured appendix with abscess or generalized peritonitis. Online search of codes can be done at the AMA website (ama-), entering either the CPT code number to find the procedure or the keyword to find the number. The numbers are then applied by insurers to determine payment by the insurance company to the medical provider and facility. Since the CPT codes are uniform services are billed for the same services to ensure uniformity. MEDICATION ? There are more than one million serious medication errors in hospitals annually. These mistakes arise because of the administration of the wrong drug, medication overdoses, and overlooked drug interactions. These errors can also be related to illegible handwriting on prescriptions and decimal point errors. The Centers for Medicare & Medicaid Services (CMS) Conditions of Participation Interpretive Guidelines further require drugs to be administered within 30 minutes before or after the scheduled time. Medication administration is an important part of patient care. The method by which a drug is given determines the medication’s clinical effectiveness. Depending upon the medication and the nature of the medical problem, drugs can be given by mouth (PO – per os), rectally (PR – per rectum), injected into a vein (IV – intravenous) or artery (IA – intraarterial), injected under the skin (SC – subcutaneous) or muscle (IM – intramuscular). Each time a physician orders a drug, the dose, timing, and route of administration must be included in the order. Further, an incorrect method of drug administration may lead to adverse consequence from the medication. For instance, intravenous (IV) furosemide given too fast can cause deafness; oral penicillin V administrated with food will not be well absorbed; over-application of topical steroids will result in a thinning of the skin and may lead to systemic side-effects.The issuance of medication has its own vocabulary that needs to be understood in order to make sense out of the medical records. The following are a few of the more common abbreviations:a.c.before mealsa.m.morningb.i.d.twice a dayb.i.w.twice a weekc.withi.m.intramusculari.v.intravenousn.p.o.nothing by mouth q.d.every dayo.m.every morningqnevery nightp.c.after mealsp.o.by mouthp.r.n.as neededp.r.by rectumq.i.d.four times a dayq.o.d.every other days.withoutslsublingualt.i.d.three times a daytoptopicallyw/withw/owithouthsat bedtimeThe circulatory system provides a rapid means of introducing medications, fluids, or more blood if needed. The two routes of this intravascular administration is by injection into a vein or artery.Intravenous (IV) route involves the administration of a drug into a vein with the medication diluted by the blood before it reaches its target organ. Intravenously administered drugs can be given slowly by infusion or rapidly by syringe. With the slow infusion method, a short catheter or butterfly needle is inserted into a vein and connected by tubing to an IV bag. This bag contains a saline solution with the medication being dissolved in the fluid. In another approach, the drug may be “piggy-backed” from a smaller bag into the larger IV bag. Whichever method is used, the drug is then “dripped” slowly into the vein, usually by means of a pump which controls the rate of infusion. This method is most useful with antibiotics or chemotherapy given over hours or days. The IV can be placed in a location distant to the heart such as the hand or arm (even the foot or head if necessary), or close to the heart in the subclavian vein just beneath the collar bone, termed a central line. Long term IV therapy over days to months is accomplished through a peripherally inserted central catheter (PICC line). This process requires a catheter to be inserted into a vein in the arm and threaded centrally to the large veins emptying into the right atrium of the heart. If a more rapid delivery system is needed, the medication can be administered directly into the vein through a syringe without an IV bag, a procedure known as an intravenous (IV) push. Veins used in this method can be either peripherally, located in the hand and arm, or centrally, close to the heart such as the subclavian vein. Which of these venous locations are used depends upon the urgency of the situation and the patient’s cardiovascular stability. An intra-arterial (written as IA in an order) injection is not a usual route of administration for most medications because the drug will be quickly transported in large amounts to a localized area of the body. The potential consequence of this action is vascular tissue damage and death “downstream” from the injection site, such as that which tragically occurred to Diana Levine in the Wyeth litigation. One application of intra-arterial injection is for dissolving a blood clot in an artery with tissue plasminogen activator (t-PA). Of the other routes of drug administration, the circulatory system picks up the medication from its point of administration but does it more slowly. For example, orally ingested pills go through the digestive system and usually are absorbed in the small intestine and picked up by the intestinal circulation. This route generally takes about 30-45 minutes from ingestion of the medication to where it is targeted. Topically applied medications are picked up by blood vessels in the skin. Nasally inhaled medications are absorbed by the membranes of the nasal mucosa and transferred to the blood vessels in that region of the body more quickly.RESEARCH AND INVESTIGATIVE TIPS ● Any claim involving a doctor as a party or witness requires special handling. The physician is at an advantage because of the individual’s superior medical knowledge. There are ways, however, of leveling the playing field.BACKGROUND INVESTIGATION ? Many court systems maintain accessible dockets on the internet. Conducting a docket search on the opposing party or medical expert may reveal interesting information about the person’s claims history as well as other litigation problems. Perhaps the treating doctor is having financial difficulties and has been sued by creditors. This may be an effective way of attacking a large bill for treatment.If a previous lawsuit has been discovered involving the physician, contact the attorney who represented a party in the prior claim and ask about the doctor’s credibility. If you are defending a personal injury claim, ask for copies of prior medical records authored by the doctor and depositions involving the plaintiff’s medical expert. Perhaps the physician issues similar reports in different cases.Always check the credentials of the opponent’s expert. Is the physician board certified? “The intent of the certification of physicians is to provide assurance to the public that those certified by an ABMS Member Board have successfully completed an approved training program and an evaluation process assessing their ability to provide quality patient care in the specialty.”? In this regard, an expert may list a number of board certifications, but they may not be recognized boards. There are only 24 approved board specialties. To verify a physician’s medical credentials visit the ABMS website and look for “Who’s Certified.” Verification may also be done by telephone at? 1-866-ASK-ABMS (275-2267).? Counsel should not overlook checking to see if the physician has been the subject of any disciplinary action. This may be done by checking with the appropriate state medical board. In 1986, Congress found that there was a need to restrict the ability of incompetent health care practitioners from moves between states without disclosure of their professional histories. Thus, the Federal Practitioner Data Bank was created to maintain records on health care providers that track disciplinary actions and malpractice judgments. At the present time, this information is only accessible to hospitals and state medical boards. Some states, however, such as Massachusetts and New York, have opened their data banks to the public. Special interest groups maintain files on medical witnesses. The plaintiff’s bar is extremely organized in this way and one merely has to contact the appropriate trial lawyer’s association to obtain a dossier. The defense can contact an organization called IDEX to learn about the testimonial history of a medical witness, articles written by that expert, and disciplinary action involving that physician. IDEX may be contacted at 1-800-521-5596 or by the internet at . INTERNET SEARCHES ● The internet is a wonderful source of medical information. is the best search engine and provides access to articles, pictures and discussion groups on specific topics. Advanced searches can also be done to look for specific grouping of words. A similar site is .An excellent source of medical article abstracts, or to conduct a search by author, topic or journal is PubMed. This service is run by the National Library of Medicine and includes over 15 million citations for articles going back to the 1950’s. PubMed also includes links to many sites that provide full texts to articles and other related resources. Most medical specialties maintain a website that provides information on medical conditions within that discipline. This information provides great cross-examination of a medical expert within that discipline whose treatment or opinion is contrary to the standards established by that Board. The following are examples of websites maintained by various medically specialties: American College of Radiology — flash.html.American Academy of Neurology — professionals.The American Academy of Orthopedic Surgeons -- .Medication plays a large role in patient treatment and having a basic understanding of what medicines are used for is important. This is not a difficult task when counsel has access to the internet. The Physician’s Desk Reference (PDR) is one of the best sources of learning about the purposes and risks of medication. This book may be purchased in most large bookstores and can be accessed . MedLine Plus is another reference that provides information on thousands of prescriptions and over-the-counter medications. Counsel can also type the name of the medication on the internet to learn more about the medication.Conducting medical research on the internet is also easy. The numbers of websites that provide medical information are endless. For example, the Medical Multimedia Group offers one of the best sites for learning about different orthopedic problems. The Medical Multimedia Group provides easy to understand explanations along with a variety of multi-media tools to bring the subject to life. American focuses on back problems, and its site offers animations on procedures involving the spine. Web MD advertises itself as the most extensive library on the web. Its internet address is agencies provide useful information on specific medical issues, offer statistics on medical problems, and post research studies which are helpful in cross-examining a medical expert. For example, the National Institute for Occupational Safety and Health (NIOSH) is the federal agency responsible for conducting research and making recommendations for the prevention of work-related injuries and illnesses. This agency’s site may be accessed at: niosh/homepage.html.The Centers for Disease Control maintains a site that explains a number of medical problems with links to additional research tools. The CDC is part of the Department of Health and Human Services which is the principal agency in the United States government for protecting the health and safety of Americans and for providing essential human services. The National Institute of Arthritis, Musculoskeletal and Skin Diseases supports research involving these topics and disseminates information on research progress in these disease processes. The Food and Drug Administration is responsible for protecting the public’s health by assuring the safety, efficacy, and security of drugs, medical devices, and the public’s food supply, cosmetics, and products that emit radiation. This agency offers opinions on the efficacy and safety of different medications and medical devices. The FDA can be accessed at cdrh/ct. It is frequently desirable to obtain medical illustrations for trial. A number of organizations have materials that can be used for this purpose. For example, A.D.A.M., Inc. provides detailed illustrations and medical explanations for every part of the body. Frank Netter, M.D., remains one of the best medical illustrators, and his collection of drawings can be located online at: . Medical Legal Art markets 3-D images as well as animations of various medical conditions and procedures. This organization is specifically geared to providing illustrations for attorneys. They may be contacted at: or .RETENTION OF MEDICAL RECORDS ● The length of time a medical organization must retain patient records varies by state. For example, Pennsylvania requires medical records to be maintained for at least seven years from the last entry. In addition, the records of minor children must be retained for at least two years after the child reaches majority, or seven years after the last entry, whichever is later. The American Medical Association offers the following guidelines on Retention of Medical Records:Medical considerations are the primary basis for deciding how long to retain medical records. For example, operative notes and chemotherapy records should always be part of the patient’s chart. In deciding whether to keep certain parts of the record, an appropriate criterion is whether a physician would want the information if he or she were seeing the patient for the first time. Even Medicare has issued directives on record retention and requires medical information to be maintained in its original or legally reproduced form for a period of at least five (5) years. THE TORT OF WRONGUL LIFE ? Much attention has been paid to advanced directives and the right of a patient to make end of life determinations. As noted in the section on the hospital admissions office, it is standard protocol to ask about a living will or durable power of attorney at the time of arrival at the hospital. What can be done, however, if a health care provider wrongfully fails to follow a “do not resuscitate” order that is clearly visible on a patient’s chart?American jurisprudence has established at least three causes of actions concerning the inception and expiration of life: “wrongful life,” “wrongful birth” and “wrongful living.” A suit for “wrongful life” is initiated by a child seeking damages against a health care provider for negligently failing to properly sterilize the parent. A “wrongful birth” claim is filed by the parents of an impaired child seeking to obtain damages for the birth of that child. These individuals maintain that as the result of malpractice, the parents were prevented from exercising their right to terminate the pregnancy or avoid conception. However, in a “wrongful living,” or “wrongful prolongation of life” case, the individual asserts a right to enforce an informed, competent decision to reject live-saving treatment. The Constitutionally Protected Right to DieA wrongful prolongation of life claim is inextricably linked to the constitutionally protected right to die. Thus, in a “wrongful living” action, the plaintiff is maintaining a liberty interest in refusing undesired medical treatment. It is the denial of this liberty interest, caused by a health care provider who either negligently or intentionally disregards the wishes of a patient that gives rise to a wrongful prolongation of life cause of action. Some form of valuation of life influences the legal issue in the three different causes of action. Simply put, a claim for wrongful living is a damages concept, just like a lawsuit for “wrongful whiplash” or a “wrongful broken arm.” Nevertheless, the reported decisions for wrongful prolongation of life reflect a general reluctance by the courts to grant monetary recovery, especially for pain and suffering damages, claiming it is not their place to judge an impaired life as being inherently less valuable than non-life. It has been noted that these suits place the courts in a “damned if you do; damned if you don’t” situation where recognition of a doctor’s ignorance of a living will has to be addressed within the limitations of a doctor’s responsibility to maintain life. This section will explore the concept of wrongful prolongation of life in an attempt to hold health care providers responsible for ignoring “Do Not Resuscitate” orders and similar directives as well as the statutory responses enacted to make a person’s wishes known when a life saving decision must be made. A jurisdictional analysis will also be provided.Differences in Advance Directives, Proxies, and Living WillsTo better understand wrongful prolongation of life litigation, one must examine the differences among advance directives, proxies, and living wills. Approximately 20% of Americans and 50% of severely ill patients have advance directives. This is “a legal document allowing you to give instructions to … medical professionals about the types of medical treatment you wish to receive in the event that you become unable to make those decisions for yourself.” While state laws differ regarding compliance with and the liability stemming from these directives, all such documents can be modified or cancelled at any time. Within this framework, more specific instructions may be provided through “Health Care Proxies” and “Living Wills.”A health care proxy enables an individual to choose another “to make medical decisions for you in the event that you become unable to make those decisions for yourself.” The appropriate form must be completed in order to designate a proxy, and the document may be referred to as a durable power of attorney for health care, a medical power of attorney, or the appointment of a health care agent. The selected individual may be any adult, not just a family member, and the law precludes the patient’s doctor from serving in this capacity. On the other hand, a living will can instruct a patient’s family and health care provider concerning a person’s desire concerning medical treatment. The more detailed these instructions, the better, since general directives “may not be enough to protect you from treatment you may not wish to receive because of medical conditions not specifically accounted for in your living will.” A “Do-Not Resuscitate” order (DNR) falls within the ambit of an advance directive in that it orders medical personnel not to perform cardio-pulmonary resuscitation (CPR) in the case of a respiratory and/or cardiac arrest. Health care proxies can request a DNR order as well, but if no advance directives have been made, the patient’s family can request one in the event that the patient cannot make the request directly. State laws also vary concerning compliance with advance directives, but a family member’s request should be honored if the patient is terminally ill, unconscious, or if the physician concludes that CPR would be medically futile. A physician can issue a DNR directive if the health care provider deems CPR medically unnecessary and has discussed this fact with either the patient or family, providing there is time to do so. It must be noted, however, that DNR orders only apply to CPR and do not preclude blood transfusions, central line placement, and intensive care treatment. Advance Directives: The Lessons of Karen Ann Quinlin and Terry Schiavo.Advance directives and prolongation of life questions are not foreign to the courts. This topic became a public issue in 1976 with the tragic case of Karen Ann Quinlan. A father sought guardianship of his 21-year-old daughter who was in a persistent vegetative state. Mr. Quinlan wanted to discontinue all extraordinary procedures necessary to sustain his daughter’s life. The New Jersey Supreme Court, reliant on the physician’s statement that there was no reasonable possibility of Karen’s ever emerging from her comatose state, agreed that life-support systems could be withdrawn on the basis of her right to privacy without criminal or civil liability. In this case, the court began to address questions concerning “prolongation of life” and noted the paucity of legislation in this area, a recurrent theme cited by the courts in subsequent years. The court also noted a difference between the self-infliction of deadly harm and self-determination against artificial life support in the face of certain death. Ultimately, this litigation paved the way for future courts to issue declaratory or injunctive relief against health care providers who refuse to carry out advance directives, and it has led to the enactment of state statutes that aim to protect a patient’s right to die while upholding a physician’s obligation to prolong life. These issues were again prominently brought to the public’s attention in 2005 with the Terry Schiavo litigation which addressed a woman being kept alive on artificial life support. The patient’s husband disagreed with Terry’s parents over the removal of their daughter’s food, fluids, and medical treatment. The parents alleged that the husband was violating their daughter’s rights, and they sought a temporary restraining order to reverse his decision to withhold Terry’s medical treatment. Throughout the proceedings, both parties argued over what they believed were the patient’s intentions concerning artificial life support, though no concrete document regarding her wishes existed. The fierce debate that ensued reawakened the public’s interest in advance directives. For instance, the National Hospice and Palliative Care Organization (NHPCO) received over 900 calls and 2,000 emails from individuals during the litigation interested in state-specific advance directives so they could avoid the controversy that was taking place in the Schiavo matter. Two weeks following Mrs. Schiavo’s death, NHPCO had more than 200,000 downloads from its website for advance directives. The Proliferation of Advance Directives and the Desire to Enforce ThemSome individuals have been quite emphatic in making their end-of-life decisions known; one eighty-year old woman tattooed “Do Not Resuscitate” on her chest to reinforce the living will she had hanging on her refrigerator. While this measure may seem excessive, the increasing importance of living wills and advance directives has been highlighted by the very public cases over the right to die. States have attempted to regulate this area by enacting living will legislation. California passed the first living will statute in 1976, and every state, and certain U.S. territories such as Guam, Puerto Rico, and the Virgin Islands, has statutes that address this topic. Although no two laws are identical, all address the formality with which a living will must be executed. Many state laws specifically mention the duties and obligations of health care providers with regards to honoring advance directives while also acting in the best interest of the patient. For instance, New Jersey’s law upholds the right of health care providers to refuse to participate in withholding or withdrawing life sustaining measures while also requiring physicians to document patients’ advance directives. South Dakota, while recognizing a patient’s right to execute a living will, allows health care professionals to provide treatment to alleviate pain or discomfort. Oklahoma protects the patient’s wishes by overriding the obligations of a physician or health care provider who may desire to render care to preserve life. Even more prevalent than legislative pronouncements concerning the rights of a patient and the duties of physicians to honor advance directives are statutes that provide for immunity so long as the physician uses his or her best judgment in treating the patient. Sixteen states, along with the U.S. Virgin Islands, mention “immunity” when discussing advance directives. At least seventeen states, along with Puerto Rico, specifically mention the word “liability” with regards to treating patients with advance directives, either by the administering of treatment or the following of a DNR order. Most of these statutes do not hold the health care provider criminally or civilly liable for removing life support in the presence of an advance directive. Some states, however, expand on this law by stating, as in Oklahoma, “the physician shall use his or her best judgment” when delivering a standard of care. Texas mandates that the standard of care provided by a physician in the presence of an advance directive shall be equal to the “prudence and skill . . . exercised under the same or similar circumstances in the same or similar community.” Statutes appear to contain this general language so that, if a doctor ignores an advance directive under the pretense of following a certain standard of care, the physician will not be held liable for the disregard of it. State statutes that mention civil and/or criminal liability with regards to advance directives and/or using professional discretion include Tennessee, Oklahoma, Texas, Virginia, Georgia, Florida, Connecticut, Arizona, Washington, New York, Nevada, Massachusetts, Louisiana, Kentucky, Mississippi, Iowa, Colorado, Wisconsin, Rhode Island, Ohio, Nebraska, and the Virgin Islands. The language contained in these laws seems intentionally vague, allowing for physicians to comply with advance directives without liability if they do not act in accordance with a patient’s directive but within “reasonable medial standards.” The bottom line is that these statutes recognize the existence of advance directives, but there is a disconnect between what the law requires and a physician’s actual practice. A natural question arises as to why physicians would resuscitate individuals with DNR orders. One reason may be the lack of communication between patient/care providers and the subsequent hospital/doctor, and this problem is only compounded when individuals are transported between facilities, nursing homes, and hospitals, often without the accompanying paperwork. For this reason, some states provide the option of wearing a “Do-Not-Resuscitate” bracelet to inform doctors of a patient’s resuscitative choice. For example, Pennsylvania defines an “Out-of-hospital do-not-resuscitate bracelet” as one “supplied by the [Department of Health of the Commonwealth] and issued by the attending physician, which may be worn at the patient’s option to notify emergency medical services providers of the presence of an order.” Wisconsin allows doctors to “provide a DNR order in the form of a bracelet for adults with terminal illnesses who choose not to receive cardiopulmonary resuscitation (CPR), including cardiac compression, endotracheal intubation, artificial ventilation and defibrillation should they have a medical emergency while not hospitalized.” Montana and the District of Columbia use a “Comfort One” bracelet to alert EMS of an advance directive. Virginia and several other states use bracelets and/or necklaces that have DNR instructions printed on them to notify emergency personnel when a person is not a patient in a hospital, nursing home, or licensed hospice. Interestingly, Wisconsin and a few other jurisdictions provide that the defacing or removing of a DNR bracelet by the patient is considered a revocation of the order. While bracelets may help to communicate a patient’s final wishes, most of these measures are aimed at alerting EMS first-responders, so if the bracelet is inadvertently marred or removed in the chaotic activity of an emergency situation, physicians may not be properly informed when patients are transferred from one location to another.Why Are Advance Directive Ignored?Communication errors may be one reason why doctors fail to adhere to a patient’s advance directives, however, the fear of reprisal from family members when following such instructions weighs heavily on doctors’ minds. While statutes exist to protect physicians in these situations, this does not always insulate them from lawsuits. Some doctors, therefore, err on the side of human life when making decisions about resuscitation and other life saving measures, thereby ignoring a living will, adhering to the belief that they will be subject to a damages lawsuit. This is what happened in Allore v Flower Hospital where the patient’s living will was ignored by his health care providers despite their awareness of its existence. Under the terms of the living will, the patient wanted “no life-sustaining treatment” in the event of a terminal condition or “permanently unconscious state.” After being repeatedly admitted to the hospital for pulmonary problems associated with asbestosis, he was intubated and mechanically ventilated despite the hospital personnel’s knowledge of Allore’s advance directive. In fact, the patient’s chart read “In the event of cardiac standstill, ventricular fibrillation or respiratory arrest, resuscitation measures are to be initiated immediately using ACLS protocols” which measures were in direct contradiction to the patient’s wishes. Unfortunately, Mr. Allore’s repeated hospitalizations caused his end-of-life directions to be lost in the shuffle of paperwork and changing of physicians. In a subsequent lawsuit, the estate was barred from recovering damages for the wrongful prolongation of life. The court noted that since the “harm” was the benefit of life, it would not provide compensation. The only damages allowed were those related to the alleged battery for the resuscitation efforts against the patient’s wishes. Thus, the recovery of medical costs and pain and suffering could not be awarded since they related to the wrongful prolongation of the decedent’s life and not a direct result of a battery or negligence. Allore was decided under the doctrine of implied consent, which policy protects physicians when providing treatment in emergencies “without the specter of liability for lack of consent.” And, although this policy is not applicable when an advance directive exists since an individual has already made a choice regarding life-sustaining measures, a physician can still act within means of a standard of care, especially when an advance directive is not clearly known. In this regard, the court recognized that there was no evidence that the attending physician was aware of Allore’s refusal of treatment, and since he signed a consent form for treatment when admitted to the hospital, “no issue of material fact existed as to implied consent on the part of Frank Allore to the patient’s intubation and ventilation.” On the other hand, as it became clear that Allore’s pulmonary and medical status was deteriorating, one could question why he was taken to the hospital in the first place since the physicians had nothing more to offer him except intubation. It would have been a reasonable decision given his terminal condition to allow him to expire at home. Allore might seem like an isolated incident of ignoring a patient’s wishes, but it is not. One survey found that only 36% of individuals with advance directives had mention of this fact in their medical records and less than 1% actually had the document filed with their chart. The study concluded that advance directives fail to have a significant effect on orders regarding resuscitation. As research has shown “medical care at the end of life is often inconsistent with patient choice even when the patient has made a choice known.” Other studies have revealed that the medical profession’s ambivalence toward advance directives often leads to their failure to comply with these orders for several reasons: (1) the fear of liability (2) the perception that directives interpose an unnecessary additional control over, and interfere with, the physician’s professional actions, and (3) the perception that directives implicitly question the physician’s judgment of the patient’s best interests. Additional factors include miscommunication, lack of relevant documents in a patient’s chart, and the financial motivation to prolong treatment. And, even when an advance directive exists, the patient’s decisions are not always clear since living wills often contain general language that does not refer to specific life-sustaining treatment. While overly cautious resuscitation might have been the practice in the past, a recent study found “do-not-resuscitate” orders to be an independent risk factor for poor surgical outcome. The researchers concluded that surgical patients with DNR orders sustain postoperative complications, with 1 in 4 dying within 30 days of surgery. In fact, people with DNR orders may be twice as likely to die soon after surgery regardless of the procedure or health status of the individual before the operation. Some attribute this statistic to the overall poorer health of this population, but the Director of Clinical Ethics at Stanford’s Center for Biomedical Ethics claims these directives “subconsciously affect how doctors and nurses treat patients. For example, they order fewer tests and don’t enter the patient’s room as often.” The Patient Self-Determination ActThe Patient Self-Determination Act (PSDA) was found by the United States Supreme Court, in Cruzan v Missouri Department of Health, to recognize the constitutional right of an individual to make medical decisions. As noted, “A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment.” By way of background, PSDA requires health care providers receiving Medicare and Medicaid funds to inform patients of their right to make a living will and have a health care proxy. Hospitals, nursing facilities, home health agencies, hospice programs, and certain health maintenance organizations are included in this legislation, and they are required to ask patients about their advance directives and to document those instructions in the medical records. This federal law is important because it reinforces the patient’s ability to make their final wishes for medical care known, and it offers an added layer of protection to the various state statues on living wills. Equally as important, the term “wrongful prolongation of life” has made its way into the legal vernacular based on the increasing number of claims in recent years using this term to recover damages. In these cases, the “wrongful prolongation of life” has required a close look at state and federal laws with regards to death, living wills, and advance directives. While state laws might be used as the basis for a cause of action against a health care provider who ignores a living will or advance directive, a violation of these statutes alone has not been utilized as the foundation for a wrongful prolongation of life lawsuit; rather, theories of liability for battery, negligence, wrongful life, violation of constitutional rights, and infliction of emotional distress have been the basis for these lawsuits. Cruzan has been used as precedent for a number of wrongful prolongations of life cases that have made their way to the courts since the inception of the PSDA. For instance, in Rosebush v Oakland County Prosecutor, a Michigan court cited Cruzan to reinforce the principle that a competent adult has the right to decline medical treatment or lifesaving methods. The facts show that Joelle Rosebush was left in a vegetative state after a car accident, but her injuries did not leave her “brain dead.” The patient’s family sought to have her life-sustaining treatments stopped, and theories of battery and informed consent of the patient were bantered about when the doctors refused. While the court ordered the removal of life support, a dissenting judge noted:Courts in foreign jurisdictions have recognized the unique policy and societal implications of removing the life-support system of a person in a persistent vegetative state. Because of the complex and sensitive nature of issues that are related to the removal of life-support systems, these courts urged that judicial policy making give way to the legislative process in order to insure that the interests of the constituency are served. Similarly, this Court has recognized that where moral and public policy matters are at issue, intermediate appellate judges should forgo their desire to create new law in favor of the legislative process. This comment aptly pinpoints the reason for the hesitancy by the courts to prescribe rules for cases concerning these sensitive issues. The courts do not want to legislate, and would rather leave the matter to the legislature to create new cause of action for wrongful prolongation of life. Nevertheless, the majority in Rosebush acknowledged that a state’s interests may outweigh the right to refuse life-sustaining treatment when the issue involves the preserving of life, protecting innocent third parties, preventing suicide, and maintaining ethical standards in the medical profession. Thus, while acknowledging advance directives, the court cited caveats that allow physicians to override a patient’s wishes in certain instances. Wright v John Hopkins Health Systems is another case that drew attention to a state’s law regarding advance directives. This Maryland case involved an individual with Acquired Immune Deficiency Syndrome (AIDS) who was resuscitated after a cardiac arrest. The person’s estate sued the health care providers, claiming they “wrongfully prolonged the patient’s life” when he had a living will that stated his desire for no resuscitation. Ultimately, the court noted that the patient’s statements in the emergency room about a DNR order were insufficient and that CPR did not cause the patient’s death. The court skirted the issue of wrongful prolongation of life by denying the claim for damages on other grounds and concluding that it was up to the legislature to decide whether wrongful prolongation of life is a proper tort. This case is yet another example of how the courts have found ways not to recognize causes of action for wrongful prolongation of life. The Indiana court in Taylor v Muncie Medical Investors also refused to recognize this cause of action. The facts demonstrate that Taylor executed a living will before entering a nursing home and a DNR order while in the nursing home, which documents were ignored after she suffered a stroke that left her comatose. An action was brought against the nursing home for the wrongful prolongation of life, but the court denied the claim, noting that its state’s Health Care Consent Act provided a remedy that already existed under the Indiana Code. New York considered the issue of wrongful prolongation of life in Cronin v Jamaica Hospital Medical Center and ruled that such a case could not be maintained since being alive does not constitute an injury. In Grace Plaza of Great Neck, Inc. v Elbaum, another New York court issued a similar ruling and even found that the “nursing home did not forfeit its right to payment for treatment provided to the patient after the nursing home refused to follow the spouse’s instruction to remove the patient’s feeding tube.”Illinois discussed the issue in Gragg v. Calandra, a case in which a patient underwent open heart surgery without consent and was placed on life-support despite a living will that contained instructions to the contrary. The defendant’s medical director stated that he would not honor the living will. The facts show that the patient never regained consciousness and died. A lawsuit was filed premised upon violations of the Illinois Family Expense Act and Consumer Fraud and Deceptive Business Practices Act. In this regard, the plaintiff claimed that the defendants “represented to the public that patients for cardiology services would promptly receive care for cardiac patients who would be in surgery within an hour.” The decedent’s family also stated that the medical center claimed it had a complete cardiovascular unit with a catheterization lab that would help patients choose the right doctor. The court denied the claim under the Family Expense Act asserted that the legislation only allowed a spouse to recover expenses incurred due to an injury. The court also stated that the plaintiff failed to establish how the medical center’s advertisements were false and there was no causal connection between the alleged false advertising and the particular heart surgery that led to the plaintiff’s injuries. In addition, the family sought damages for intentional infliction of emotional distress caused by the doctor’s public accusations that they were trying to kill Florian by withholding life-sustaining treatment. Surprisingly, the appellate court found that the trial judge erred in dismissing the count for intentional infliction of emotional distress. Some attorneys have crafted lawsuits for wrongful prolongation of life under a breach of contract theory such as in Scheible v. Joseph L. Morse Geriatric Center, Inc. In this Florida litigation, it was alleged that a nursing home disregarded the patient’s advance directives under the Patient Self-Determination and Nursing Home Resident’s Rights Acts. The later legislation provides that a patient has “the right to refuse medication or treatment and to be informed of the consequences of such decisions, unless determined unable to provide informed consent under state law.” The breach of contract claim was premised upon the theory that the living will/advance directive was incorporated into the contract for the patient’s care. A jury was favorably impressed with the contract claim and awarded $150,000. On appeal, the court had to decide whether the resuscitative measures taken contrary to the decedent’s wishes resulted in “a manner of death other than that which would have occurred absent those measures.” The court ultimately concluded that the estate had no cause of action for violating the patient’s bill of rights. Prior to the 1997 Allore case, Ohio had other wrongful prolongation of life claims which were influenced by legislation in this area. In 1991, the state adopted a version of the Uniform Right of the Terminally Ill Act which expanded the powers under a durable power of attorney for health care. This Act details the right to refuse life-sustaining treatment, the right to die, and acknowledges living wills. In Anderson v St. Francis-St. George, just two years before Allore, damages were sought for the wrongful prolongation of life of an 82 year-old man who wanted no extraordinary measures utilized to prolong his life and who was resuscitated despite a “no code blue” order in his chart. In the first appeal, the court held that “wrongful living is not a compensable loss in Ohio.” The patient’s estate could not recover damages just for the patient being alive after resuscitation. However, the violation of an adult patient’s life to refuse treatment was addressed, a right affirmed by the Ohio statutes and federal law which included the Uniform Right of the Terminally Ill Act. The second appeal defined a claim of wrongful living as a damages concept, and thus looked at the facts under claims of negligence and battery. Ultimately, the Ohio Supreme Court held that “(1) there is no cause of action for wrongful administration of life-prolonging medical treatment or ‘wrongful living,’ and (2) patient suffered no legally compensable damages as a result of resuscitation.” Thus, while the first appeal established that one has the right to decline life-saving treatment and health-care providers can be forced to comply with these directives, the second review established that tort law is not a means of redress when life-sustaining measures have already been taken. DRUG ADMINISTRATION ? Wyeth v. Levine is an important case in the area of drug administration and established that the drug manufacturer’s warning label was inadequate even though it was approved by the FDA. However, it is not the only malpractice case in this area.In Spensieri v. Lasky, the plaintiff was given birth control pills but began experiencing irregular menstrual bleeding. She was switched to birth control pills containing estrogen. The following month, she still suffered from irregular bleeding with clots. The defendant made the diagnosis of dysfunctional uterine bleeding and instructed her to take birth control pills four times a day for five days and, thereafter, once per day. According to the Physicians’ Desk Reference (PDR), oral contraceptives carry with them a risk of thromboembolism leading to strokes and that patients often discontinue use of oral contraceptives when they experience irregular vaginal bleeding. Furthermore, the PDR warns that changing to an oral contraceptive with higher estrogen content may increase the risk of thromboembolic disease. In this case, when the bleeding did not stop, the physician prescribed Estinyl whose drug package insert notes that the dangers of estrogen include abnormal clotting leading to stroke, heart attack or pulmonary embolus. The insert further warns that while on estrogen, a person should be alert for “signs of trouble,” including abnormal vaginal bleeding. Within a month of taking the medication, the 29-year-old plaintiff suffered a severe stroke rendering her quadriplegic and unable to speak. At trial, the plaintiff sought to introduce “product information” excerpts from the PDR. Her medical expert characterized this information as authoritative and further noted that drug manufacturers must provide this information to the Food and Drug Administration. He also claimed that the PDR established a standard of care for physicians relative to the use and administration of birth control pills. The court ruled that the information in the Physician's Desk Reference is hearsay, and cannot by itself; establish the standard of care for a physician in prescribing and monitoring a drug during treatment of a patient. Instead, expert testimony is required to discuss whether the medication caused an unacceptable risk to the person.Likewise, an internationally recognized Professor of Pharmacology and Toxicology was not competent to testify in a medical malpractice case against a neurologist alleging improper administration of drugs. The court ruled that the expertise of the witness must include knowledge of the standard of care applicable to the defendant-physician as to at least one of the matters on which the plaintiff's malpractice claim is based. However, not all jurisdictions would support this ruling. For instance, a pharmacologist was allowed to offer expert testimony against a physician in Mississippi, New York, Pennsylvania, the District of Columbia and Georgia. On a more restricted basis, where the expertise of the pharmacologist does not completely overlap with a doctor on the standard of care at issue, the expert is not competent to state that the standard was breached, but the testimony may be relevant and admissible for a more limited purpose.CONCLUSION ● Medical records are critical to properly handling a personal injury claim. Obtaining and understanding these documents, however, is not always an easy task. A patient’s records are protected by federal and state laws. Even though a claimant waives the doctor-patient privilege when a personal injury claim is advanced, there are a number of procedural hurdles that must still be overcome before the documents will be released. A properly worded and executed release that complies with HIPAA is certainly the easiest way of requesting the records, but that route may not always be possible. The records may have to be subpoenaed and a technical mistake in the request may delay the receipt of the records for quite some time. Some health care providers may also ignore the subpoena maintaining that the records will not be released without a properly executed medical release.Regardless of the challenge, counsel must be diligent in the pursuit of these documents because of their importance. Cases can be won or lost based upon what is contained in a patient’s chart, so counsel needs to review this documentation. An attorney should also not overlook the importance of obtaining non-accident records, such as the family doctor’s records, and in obtaining updated records before trial.Understanding the medical documentation once it is received takes a little practice. That task can be simplified when counsel understands how the records are arranged and the meaning of the various sections of the patient’s chart. While the organization of those records may differ among health care providers, the sectional format should be the same and present a story of the patient’s care over time. The internet should not be overlooked as a reference tool in helping to understand the records and in conducting a background search on the medical witness. The expert’s testimonial history and medical qualifications are key points to investigate. Also, counsel has the ability of retrieving any number of documents from the internet, especially medical abstracts on very specific medical issues and guidelines from medical organizations on how to treat medical problems. These documents are very useful in examining the physician at trial. PRACTICE CHECKLIST FORUNDERSTANDING MEDICAL RECORDSEvery time a person receives medical care, a record should be made of that visit which should detail the patient’s complaints, the physician’s observations, and treatment outcomes. These records, however, are normally confidential. In a personal injury setting, counsel can force the disclosure of the information in most situations but must comply with a variety of rules and regulations. Understanding the records once they are received can also be a challenge. There are a number of key points to keep in mind that should make an attorney’s job easier when dealing with medical records. Armed with practice and a medical dictionary, attorneys will discover that understanding the medical chart follows a learning curve that can be mastered.Counsel for the plaintiff must obtain the medical records in order to investigate the merits of the claim and to properly document the injury.While the task of plaintiff’s counsel in obtaining the records is easier than opposing counsel’s, all authorizations must comply with the HIPAA requirements as set forth in 42 U.S.C. 1301 et seq.Counsel for the defense should not rely on the medical specials submitted to the insurance carrier by plaintiff’s counsel. There is no mandate that these records be complete and plaintiff’s counsel may only disclose favorable information.Once the case is in suit, the defense should always issue formal discovery and obtain answers under oath. Unless court rules mandate the use of specific interrogatories, defense counsel should always include a series of questions that focus on the claimant’s general health including the names of the family doctor, pharmacy, and insurance carrier. Counsel should always obtain the full medical records of the claimant and not just isolated pages such as a hospital discharge summary.Medical records fall within two general categories: physician office notes and the hospital chart. If an ambulance or emergency vehicle was dispatched to assist the claimant, a record will also exit of that service.Physicians’ office notes will not follow a uniform format but there will be certain standard types of information in these records which should include an initial patient questionnaire, progress notes, correspondence from third parties, diagnostic procedures, and miscellaneous recordsDoctors may record office visits in loosely worded paragraphs or they may follow the SOAP format to provide a uniform recording system. This acronym stands for subjective, objective, assessments, and plan. “S” is a statement of the patient’s subjective complaints on the date of the examination. “O” represents the physician’s objective observations and findings. “A” refers to the doctor’s assessment of the situation. “P” explains how the physician plans on proceeding with treatment.When a rescue squad is at the scene, a record will be made of the crew’s observations and examination of the claimant. This is a useful record to review since the comments will be from a neutral observer and will document the claimant’s condition without the outside influences of a third person. Hospital charts are more formal than the records of health care practitioners and will follow a more uniform format.The individual units of the hospital record include:-Emergency Room Record-Patient Registration-History and Physical-Progress Notes-Consultations-Laboratory Studies and Diagnostic Tests-Nurse’s Notes-Medication Sheets-Physician’s Orders-Operative Notes and Pathology Reports-Discharge Summary-Incident Reports-Consent and Other Miscellaneous FormsThe emergency room record is a very important document in the investigation of a claim. It establishes a baseline for the patient’s complaints and will usually contain a statement from the plaintiff concerning the event.The Admissions Department will require the patient to complete the necessary paper work including a medical consent form and an authorization to bill the insurance company.The History and Physical section of the chart is the starting point for why the person is in the hospital and the recorder of information is usually an intern or house physician. This section will include the patient’s chief complaints, a review of the important body systems, and physical examination.Once the patient’s hospital chart has been created, all subsequent entries will be recorded in the progress notes. These remarks are recorded by the attending physicians and represent their observations of the patient on a chronological basis. The discharge summary is one of the most frequently requested records by counsel but it is the least accurate. Many times, the record is completed by a junior member of the staff subsequent to the patient’s discharge and will be cursory in nature.Whenever surgery is performed, the physician will issue a preoperative statement as to the purpose of the surgery, a preoperative diagnosis, and the procedure to be performed. The physician may also note the history of the present illness. This information will be followed by a discussion of the actual surgery performed, the findings, and complications.Miscellaneous records will include treatment and examination by members of the physical therapy department, and incident reports such as a fall or potential malpractice claim. RESEARCH TOOLSWest’s Key Numbers:Discovery of Medical Records.Key Cite: 307A Pretrial Procedure, §307Ak382Divulging Patient Communications.Key Cite: 299 Physicians & Surgeons, §299k15(9)Admissibility of Medical Records. Key Cite: 157 Evidence, §157k351Admissibility of Medical Bills. Key Cite: 157 Evidence, §157k355Discovery of Medical Records. Key Cite: 170A Federal Civil Procedure, §170Ak1598When medical records are not discoverable.West Cite: Pre-trial Proc. § 373 and §382Wrongful disclosure of a patient’s records.West Cite: Phys. §15 (9)Admissibility of medical records in court.West Cite: Evid. §351 Discovery of medical records.West Cite: Fed. Civ. Proc. §1598Wrongful disclosure of medical information.Key Cite: 198H Health, §198Hk642Procedure involving discovery of medical records.Key Cite: 307A Pretrial Procedure, §307Ak24Effect of privileged matters on discovery of medical records.Key Cite: 307A Pretrial Procedure, §307Ak33Effect of medical records on preclusion of evidence Key Cite: 307A Pretrial Procedure, §307Ak45Proceedings involving medical records.Key Cite: 307A Pretrial Procedure, §307Ak130Discovery of medical records.Key Cite: 307A Pretrial Procedure, §307Ak372Making requests for medical records.Key Cite: 307A Pretrial Procedure, §307Ak403Trial court’s determination of discoverability of medical records.Key Cite: 307A Pretrial Procedure, §307Ak411Protective orders of medical records.Key Cite: 307A Pretrial Procedure, §307Ak413.1Failure to provide medical records.Key Cite: 307A Pretrial Procedure, §307Ak434Admissibility of medical records.Key Cite: 307A Pretrial Procedure, §307Ak752Legal EncyclopediasAm. Jur. 2d, Records § 35CJS, Fed Civ Proc § 720American Jurisprudence:“Obtaining, Organizing and Abstracting Medical Records for Use in a Lawsuit,” 36 Am. Jur. Trials 695. “Unauthorized Disclosure of Confidential Patient Information,” 32 Am. Jur. Trials 105. “Discovery and Evaluation of Medical Records,” 78 Am. Jur. Trials 559“Representing Automobile Accident Victims,” 58 Am. Jur. Trials 283-General discussion of medical records, §54-57-Release of Medical Records, §46 and §55-Medical Records authorization, § 55-Prior Medical history of client, §4 and §127American Law Reports:“Admissibility of hospital chart or other hospital records,” 75 A.L.R. 378, supplemented by 120 A.L.R. 1124Proof of Facts:“Foundation for Admissibility of Hospital Records and X-Rays,” 38 POF 2d 145.“Medical Malpractice--Use of Hospital Records,” 22 Am. Jur. Proof of Facts 2d 1.Law Reviews and other Periodicals“Attorney access to and use of medical records (discusses HIPAA),” 76 Wis. Law. 18, 2003 WL 23137737 (LRI).“Confidentiality of medical records and the Health Insurance Portability and Accountability Act of 1996,” 30–Mar Colo. Law 65. “Examining Medical Records: How to Know What is Said When You Read What the Doctor Wrote,” 82-Mar A.B.A. J. 88 (1996). “Medical Information Privacy under HIPAA: A Practical Guide,” 32-May Colo. Law. 11 (2003 WL 21694861).“Reviewing Discovery under HIPPA Privacy Rules,” 8/17/2001 N.Y. L.J. 1 (2001 WL 1410071).“An eHealth Diptych: The Impact of Privacy Regulation on Medical Error and Malpractice Litigation,” 27 Am. J. L. and Med. 361 (2001).“Consumer Protection: Protecting the Medical Patient's Right to Privacy,” 31 McGeorge L. Rev. 233 (2000).“The Final Patient Privacy Regulations Under the Health Insurance Portability and Accountability Act—Promoting Patient Privacy or Public Confusion?,” 37 Ga. L. Rev. 723 (2003).“The Law of Unintended Consequences: HIPAA and Liability Insurers,” 69 Def. Couns. J. 296 (2002). “Hippocrates To HIPPA: A Foundation for A Federal Physician-Patient Privilege,” 77 Temp. L. Rev. 505.“Spoliation of Evidence and Medical Malpractice,” 14 Pace L. Rev. 235. ................
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