How and Where to Get Complete Medical Records

 A. Defining  Medical Records 

Defining medical records seems to be a simple task. Anyone who has ever seen a health care provider knows that the physician’s records contain pertinent information about their history and physical complaints which makes up their chart.

In 1996, Congress enacted the Health Insurance Portability and Acccountability Act, also known as HIPPA.  Title II of HIPPA  enacts a privacy rule, the effective date of which was April 14, 2003, which establishes regulations relating to protected health information of patients.  One of these regulations prohibits the release or disclosure of any information relating to a patient unless the patient executes an authorization allowing and/or directing the health care provider to disclose the requested information to a specific person or entity.  Thus, in order to obtain a copy of a patient’s medical records from any health care provider, the patient must sign a HIPPA compliant authorization in favor of the firm.

In Louisiana, there are several statutes and articles governing the procedures for maintaining, requesting, providing and introducing medical records. Given the voluminous nature of these statutes, only a citation and brief explanation are provided below.

La. R.S. 40:1299.96

A (1) each health care provider shall furnish each patient, upon request of the patient, a copy of any information related in any way to the patient which the healthcare provider has transmitted to any company or any public or private agency, or any person.

This section broadly defines medical records relating to the patient’s care. It goes on to provide that the medical records of a patient maintained in the healthcare provider’s office are the property and business records of the healthcare provider. 40:1299.96(2)(a).

This section also sets forth reasonable copying charges associated with requesting medical records of a patient and also provides for penalties if the healthcare provider fails to provide a copy of the records within a reasonable period of time, not to exceed fifteen days following the receipt of a written request. The statute also provides that medical and dental records shall be maintained by a physician in the original, microfilmed or similarly reproduced form for a minimum of six years from the date of when the patient was last treated by a physician or dentist. Additionally, graphic matter, images, and x-ray films which were necessary to produce a diagnostic or therapeutic report should be retained for a minimum of three years from the date of when the patient was last treated by a physician or dentist.

La. R.S. 40:2144 Hospital Records and Retention Act

This act sets forth the statutory authority for maintaining hospital records, the method for storing that information and the time limits for which the hospital must store these records.

La. Code Civil Procedure Art. 1465.1

This article governs the request for release of medical records. It allows a party in litigation to serve a release upon another party so that the requesting party may obtain the records from the healthcare provider. Significantly, this article expressly mandates that the release prohibits verbal communications by the healthcare provider. See also Boutte v. Winn Dixie of Louisiana, 95-1123, 674 So.2d 299 (La. App. 3rd Cir. 1996) (court reversed jury verdict finding an error of law in defense counsel’s failure to include mandatory language in release and subsequent ex parte contact with treating physicians.

La. Code of Civil Procedure Article 1469.1

This article provides authority to compel discovery of medical records when the party fails to comply with a legal request.

La. R.S. 13:3714

This statute addresses the authentication of charts or records of hospitals and other healthcare providers when they are offered into evidence. It allows the court to receive certified copies of hospital and medical records and bills as prima facia proof of their contents.

La. R.S. 13:3715

This statute is similar to La. R.S. 13:3714, but applies to State operated healthcare facilities.

La. R.S. 13:3715.1

This law sets forth the procedure and effect of the release of medical records pursuant to a subpoena issued in litigation.

Although these statutory provisions, provide some guidance in attempting to obtain the complete medical records of your client, it is imperative that one understand how healthcare providers keep these records so that any request can be comprehensive.

B. Types of Medical Records.

The types of medical records vary depending upon the healthcare provider involved. For instance, records which you may receive from a hospital are different than those received from a private physician. In this section we will discuss the types of records from both healthcare providers.

Hospital Records

Hospital records are usually maintained by category.Although these particular categories can vary from hospital to hospital throughout the state and country, they are generally grouped into the following categories:

Admission and discharge information,

Consent forms,

Consultations,

Operative path,

Graphic charts,

Lab reports,

Medications,

Nurses notes,

Physician orders,

Progress notes,

X-rays,

EKG/ EMG/ EEG.

Understanding what information is contained in these categories is critical in determining whether a complete set of medical records has been provided.

Admits/Discharge

Generally this information includes typewritten admitting and discharge sheets. These forms document various information including the patient’s date of birth, name, social security number, date of admission, date of discharge, admitting diagnosis, and insurance information. In this section you may also find the initial history and/or admitting history relating the patient’s chief complaints and other past significant medical procedures and illnesses.

Consents

Included in this section are all the signed consent forms which the patient and/or his representative executed authorizing the hospital and physicians to perform their procedures associated with that particular admission. There may be more than one consent for each procedure. This section can be particularly important if the issue is one of informed consent. Generally, the consent forms are preprinted forms which are signed at the bottom by the patient and are usually witnessed by at least one or two hospital nurses. The physician also signs the consent form.

ConsultantsThis section includes the physician notes from all physicians that the admitting physician has consulted with during the patient’s hospitalization. For instance, during a hospitalization for a surgery, the surgeon and/or admitting physician may seek consultation from an infectious disease specialist. That infectious disease specialist would write down the history, physical findings, and examination pertinent to his consultation on the consultation form. For an extended hospitalization, multiple consultations are common. These consultation reports are dated and should be timed. This can help establish a chronology of when the patient was seen and by whom. However, at least in Louisiana, it does not appear to be the practice of physicians to record the time of their consultation visits.Operative PathIncluded in this section are the typed-written operative notes of the surgeon or physician performing the procedure. At the bottom of the operative report you will find the date it was dictated and the date it was transcribed. This document can be very valuable in determining the precise nature of the procedure and the physician’s technique involved in that procedure. The date it was dictated and transcribed are also significant in that there are certain hospital protocols which establish how soon after the procedure this particular document must be recorded and transcribed and placed in the patient’s chart. It also establishes the identity of the assisting physicians involved in the procedure.Graphic chartsGraphic charts contain information, in graphic form, which is recorded by the nurses. This may include urine output, vital signs, nutritional information, and the like.Lab reportsLab reports generally consist of all laboratory analyses performed on the patient during their hospital stay. This could include complete blood counts, urine analysis, pathological analysis, blood gasses, complete chemistry panels, and culture and sensitivity reports. Any analysis by the laboratory should be included in this section. Lab reports usually are dated and contain the time that the blood was drawn.MedicationsMost hospitals have what is called a medication administration record which precisely documents all medications administered PO, IM, or IV, to the patient during their hospitalization. It also establishes the dosages and the times that the medications where administered throughout the hospital stay. These forms vary from handwritten entries to computer-generated forms. The medication and administration records can be cross-referenced with the physician orders to insure accuracy.Nurses notesAll nurses who provide patient care are required to chart the findings of a particular patient. Some nurses chart in more detail than others, but generally all of their charted information, in narrative form, is included in the nurses notes. These notes frequently contain times that medications were administered, the recordation of vital signs, the times when physicians were notified, when orders were received, and when orders were carried out. These notes are usually recorded on a preprinted form which has “Nurses Notes” printed at the top. Additionally, the nurse’s note should document shift changes and the report given from one nurse to the other regarding the patient.Physician OrdersThe order section contains all of the physician orders which were given for the particular patient during the hospitalization. Again, a preprinted form, usually labeled physician orders, is filled in by each physician. It contains all of the orders provided by all of the physicians associated with the patient’s care. They are arranged in chronological order.Nurses frequently write the times that the order was carried out on a physician order note. However, not all physician orders are written by physicians. Sometimes a physician will give orders telephonically and the nurse will record those physician orders per his instructions. This is usually noted on the physician order form.Progress NotesProgress notes are the notes that the physician writes regarding the progress of the patient. The physicians which follow the patient regularly document their daily and/or hourly visits to the patient and the progress noted. When read in conjunction with the nurse’s notes, these notes help document a more complete picture of the patient’s status. As previously stated, physicians that see the patient on a one time or limited basis usually have their documentation under the consultation section. Progress notes are dated and usually timed.X-raysX-ray is a broad category that can define every radiographic test from plain films to transesophageal echocardiograms. The reports from the radiologist documenting his findings are included in this section. The actual film does not usually form part of the patient’s chart. Thus, one must seek these records from the radiology department.EKG/EMG/EEGThis section includes the results from the following types of tests, electrocardiograms, electromyelograms and electroencephalograms performed during the patient’s hospitalization stay. Be sure to obtain the actual twelve lead strips when requesting the EKG’s rather than the rhythm strips. This section may or may not include fetal heart monitor strips for an obstetrics patient. If the case involves obstetrical issues, it is important that the fetal heart monitor strips be obtained. However, numerous hospitals do not consider the actual fetal heart monitor strips part of the patient’s chart, and they must therefore be requested separately. Because they are not kept with the patient’s chart, it is not an infrequent occurrence that these tracings are misplaced by the hospital.Physician RecordsPhysician records are generally much less involved. Typically, a physician’s chart will include progress notes on a per visit basis. These notes demonstrate complaints, history, vital signs, physical findings, diagnose and progress. Prescriptive medications are also usually recorded. If the physician performed surgery on the patient in the hospital, the physician will usually include the operative note in his office chart. An office chart also usually includes documentation of phone consultations with the patient.With this basic understanding of the compilation of a hospital chart, and office chart, you can then determine what information is needed and request it accordingly.C. Determining What Medical Records You NeedThe determination of what medical records you need is driven in large measure by the type of case you are handling. A medical malpractice case often calls for different records than an auto collision or other tort case involving personal injuries.For instance, in an automobile collision case involving a knee injury, you would want to obtain all treating physician records for the knee injury, including the emergency room record, any hospitalization records, physician records and imaging records along with all associated billing records. Additionally, all prior medial records relating to the injured knee will be important in determining whether the plaintiff suffered from any pre-existing injuries to that knee.The focus in an ordinary personal injury case from a medical records standpoint is four fold:Did the injury occur in the accident forming the basis of the instant litigation;Did the accident cause the injury and its sequela;What is the prognosis and disability associated with the injury and;How much were the medical bills associated with this injury?More than once medical records have been used by defense lawyers to demonstrate that the plaintiff was not injured in the subject accident or that he previously sustained the exact injury for which he now complains, months or years earlier. The defense will also want to scrutinize these records to determine if the plaintiff complained of the same injury during his initial medical treatment as he is claiming now. Additionally, if the initial medical information discovered raises concern about the veracity of the plaintiff, medical records from all prior hospitalizations or physician office visits, not relating to his current injury, may also be obtained. Frequently, these records reveal other healthcare providers for the plaintiff which he failed to disclose.Medical negligence cases generally require a more comprehensive approach to obtaining records. The entire hospital chart is an absolute necessity in these cases as well as all physician records, consultations and diagnostic film. Depending on the case, previous hospital and physician records are often necessary. For instance, in a case involving a claim for improper treatment for a broken ankle, it may be important to get the patient’s family physician records to determine if the patient was suffering from diabetes at the time of the injury. Diabetes frequently plays a significant role in distal limb injuries and this otherwise seemingly irrelevant information could be very important. Radiographic films also are more important in medical malpractice cases. The films can actually prove that a condition existed when the patient was first examined by a physician and was not detected. Sometimes, physicians videotape procedures, like arthroscopic surgeries, which can be self-proving of negligence. Thus, special care should be taken to obtain these films.A common defense in these cases is to blame the patient for the poor medical care received. Thus, obtaining all medical records of your client is very important in these cases. Moreover, you can be assured that the defense will obtain these records, so it is best to get them first so that you can head off this defense.D. How and Where to Obtain a Complete Set of Medical RecordsThe task of obtaining medical records can be challenging. Once you have determined what records you need, you must then set out to obtain them. This can be accomplished in various ways. However, regardless of the method chosen, it is imperative that the records be obtained at the earliest possible time after the alleged incident. Over time records can be lost, destroyed or changed. The earlier they are obtained, the better chance of getting a complete set of accurate records.It should also be noted here that medical records custodians at hospitals frequently contract with third party services to handle the massive numbers of records requests they receive. Locally, Smart Corporation and Acadian are two common third party copy services. Once a written request is received it usually takes seven (7) to ten (10) days to receive the records.The Patient/Client Can Request Records Directly From the Healthcare ProviderIf you represent the patient or plaintiff, you can have them go to the medical records custodian of the healthcare provider and request the records directly. This unusually involves them filling out written paperwork requesting the parts of the chart they want. This approach is useful before litigation commences. It will allow you to review the records to determine if a case exists without indicating to the hospital lawyers that the patient is contemplating legal action. The only caveat to this approach is that healthcare providers do not provide certified copies of the records to the patient. They only do it for counsel. Therefore, you will need to obtain a second set of certified records once the litigation commences.A Letter and Signed Authorization Can Be Sent to the Healthcare Provider Requesting the RecordsIf you represent the patient or plaintiff or you have a signed authorization from them, you can write to the healthcare provider, enclose the authorization and request a copy of the records. This is the most common method of obtaining records. A sample letter might read:TO: PROVIDERRE: PATIENT:SSN:DOB:Dear Sir or Madame:Pursuant to the enclosed authorization, please forward to the undersigned, a complete and certified copy of the entire medical record of patient including, but not limited to:All consent forms.All physician’s notes and orders.All emergency room records.All nurses notes.All discharge records.All diagnostic test results, including x-rays.All bills associated with the foregoing treatment.This request is made pursuant to Louisiana Revised Statutes 40:1299.96 and compliance therewith is requested within the l5 days allowed by law.Of course, we guarantee payment, in advance, if you so desire for the reasonable copying charges associated with this request. If you have any questions or require additional information, please do not hesitate to contact us. The healthcare provider will then acknowledge receipt of the request, provide an invoice for the number of copies and request that you return it with the advanced payment. Be sure to request a certified copy of the records and bills. Once they are obtained, carefully check to see if the bills are enclosed. Frequently, healthcare providers who get many requests neglect to include the bills with the records.The Records Can Be Subpoenaed in Connection With a Trial or DepositionIf litigation is ongoing, a subpoena duces tecum can issue to the healthcare provider requesting production of the records. See La. Code of Civil Procedure Art. 1354. Since a subpoena can only issue in conjunction with a deposition or trial, a records only deposition must be noticed contemporaneously with the subpoena. In that deposition notice, you can include language authorizing the record-provider to produce the records a few days before the date of the deposition in lieu of a personal appearance.This method does involve the costs of having the subpoena served on the healthcare provider. If the records are not forthcoming prior to the deposition, then the deposition of the records custodian should proceed or a proces verbal recorded. This will assist you in any subsequent motion for contempt if the records are not provided.E. How and Where to Find Additional Patient InformationFrequently, interrogatories and requests for production of documents are only the starting point in obtaining information regarding the patient’s treating physicians and authorizations which will enable you to request records.Current Records Reveal other Healthcare ProvidersOnce the initial set of hospital and/or physician records is obtained, it is important to organize and carefully review these records. The number one source of additional patient information is contained in the records of his current healthcare providers. Those records often list other healthcare providers which the patient may have forgotten about when he answered the interrogatories. Current healthcare providers often note other physicians or records which you can then request.Employer Records provide Medical InformationIf a wage loss claim is involved, employment records also frequently provide additional past medical information on the patient. These records should be requested when such a wage loss claim is asserted.Patient’s Health InsuranceAnother potential source of information regarding the patient’s medical history is the patient’s health insurance carrier. If you represent the patient, this is a relatively easy request, with an authorization, to make upon the health insurance company. Again, the patient may have forgotten about a previous healthcare provider which his insurer paid. This source is particularly valuable if three years has passed since the incident and the bills no longer exist. Insurance companies may have saved those bills for a significantly longer period.Family and FriendsFamily members are a good additional source of information on the patient. If a claim for loss of consortium is being made, or if a family member is otherwise listed as a fact witness, you can take their deposition (or interview them if you represent the patient) and ask about the patient’s medical history. Family members often recall more about the patient’s convalescence than the patient.Subpoena Local HospitalsIf a patient has lived in a particular community for a significant period of time, random subpoenas to all local hospitals requesting records for a particular time period may also be a potential source of additional information.Social Security AdministrationThe Social Security Administration will also have medical information on a patient if the patient has ever applied for social security disability benefits. In fact, the Social Security Administration may require independent examinations of the patient before awarding such benefits. This information could prove to be very valuable.Workers’ CompensationWorkers’ Compensation claims also contain information on the patient’s medical history. Again, releases from the patient can be obtained where appropriate to discover this information.Private InvestigationFinally, if healthcare information is a critical issue in the case, private investigators can frequently uncover additional information through interviews with friends and neighbors which could not otherwise be obtained. This method however can prove to be costly and should be employed only on the most significant of cases.II. POWERFUL PRESENTATION OF RECORDS AT TRIALThe effectiveness of the use of medical records before a jury is only as good as the presentation. In most medical negligence cases, the medical records are voluminous and much of the chart may be introduced into evidence. The challenge at that point is to present those records to the jury in a way that will emphasize your case theme and leave them with a lasting impression.Use only the Most Compelling Records to the JurySince the jury will likely be bombarded with medical record excerpts, the first rule at trial is to utilize only the most significant portions of the records. The more exhibits you show them, the more diluted the presentation becomes. Thus, careful consideration must be given to only the most significant records.How to Show the Jury those RecordsOnce you determine the most significant records, the actual method of presentation must then be considered. Depending on this size of the case, these methods can range from blow-ups on foam board to computer scanned imagery. Regardless of the method chosen, the first step in creating a powerful exhibit is to obtain the cleanest copy of the record to be enlarged. The enlargement process greatly amplifies imperfections of the document. Thus, you should start with the best available copy. Once you get the best copy, it can be enlarged and mounted on foam board. Frequently, however, medical records are still difficult to read because of the scribbles healthcare providers use to record the information. When an important progress note or record has this problem, a separate technique is very useful. It involves a blow-up exhibit which has the document, as it exists in the record, enlarged and mounted on the left side of a foam board. The relevant portions of the document are highlighted in yellow. Then another box is shown on the right side of the blow-up with the typewritten translations of the handwritten notes. This method enables the jury to see the document in its original condition, yet visually read and understand its contents.Another useful tool at trial is a color type-set timeline. This exhibit can summarize the entire events, in chronological order, to aid in the jury’s understanding of the big picture. The contents of medical records can be summarized on the time line utilizing color enhancement for emphasis. There are computer programs, which are relatively inexpensive, which will automatically create a timeline when text is entered.Another sophisticated method to illustrate medical records in a big case is the use of a modern over-head projector or “Elmo” device. This equipment will project any document placed on its base onto a giant screen for the jury to see. It is also connected to TV monitors for the Judge and opposing counsel to view. You can use a light-pen to circle or underline parts of documents on the screen to emphasize their significance to the jury. This is very similar to the on-screen markings utilized by John Madden during the football broadcasts.Finally, if the case if large enough, all documents can be scanned into a computer. Each document is then given a bar code. A TV monitor or projector is used and any document can immediately be shown on the screen by simply swiping a light-pen across the bar code of the document. This technique was effectively used during the O.J. Simpson trial. However, it can be very expensive.Whichever method of presentation you utilize at trial, the key to success is to rehearse and practice showing the documents beforehand. There is nothing more distracting or detrimental to presentation of evidence than a lawyer fumbling with a machine or poster board. Practicing with your exhibits will allow a smooth, efficient presentation which will keep the jury’s’ focus on the exhibit, not your ineptitude in handling the exhibit.C. Challenging Medical Evidence of the Opposing SideDepending on the type of case, there are several ways the opposing side’s medical evidence can be challenged. In medical malpractice cases in Louisiana, the most common method is to challenge your opponent’s expert.Challenge Your Opponent’s Expert Through his SpecialtyLa. R.S. 9:2794 sets forth the burden of proof a plaintiff in a medical malpractice case must meet in order to prevail against a physician and it provides in relevant part:?.and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians with the involved medical specialty.Courts have interpreted this statute generally to require that the expert be of the same specialty as the defendant in order to render testimony. However, courts have also interpreted this provision to allow a specialist in one field to render expert testimony as to the proper standard of care required of another specialist when the proper treatment is the same for both specialties.See e.g. CEG Hebert v. Podiatry Insurance Co., 96-567 (La. App. 3rd Cir. 10/9/96; 688 So.2d 1107 (orthopedist allowed to testify to the standard of care for procedures performed by a podiatrist even though he admitted not knowing standard of care for podiatrists); Levya v. Iberia General Hospital, 94-0795 (La. 10/17/94); 643 So.2d 1236, (OB Gyn testified as to the standard of care for a general practitioner in performing tubal ligations).The key to having an expert in one field testify against an expert in another field is to lay the foundation that the treatment of the condition is the same regardless of the specialty treating it.Invoke a Daubert Hearing on Medical CausationThe United States Supreme Court in Daubert v. Merrill Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed 2d. 469 (1993), instructed district courts to function as gatekeepers to ensure that only reliable and relevant expert testimony is presented to the jury. Although Daubert addressed traditional “scientific” evidence, courts should apply the same rule to experts relying on technical or other specialized knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed 2d. 238 (1999).Under Daubert, the threshold test is not whether the expert evidence is based on personal knowledge, but whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.Essentially, in fulfilling this gatekeeping role, the trial court must ensure that the proffered evidence is not only relevant, but reliable, following a flexible approach considering factors such as whether the technique can be (and has been) tested, whether it has been subjected to peer review and publication, whether there is a known or potential rate of error, and whether the relevant scientific/expert community generally accepts the technique.If your opponent’s expert cannot pass scrutiny under a Daubert hearing, the court will exclude their testimony.Challenging Your Opponent’s Medical Evidence Through the Rules of EvidenceThe state and federal rules of evidence provide many avenues to challenge your opponent’s medical evidence. Starting with Rule 401 et seq’s requirement of relevant evidence through Rule 701 et seq on opinions and expert testimony, and Sections 801 and 901 on hearsay and authentication, these rules can provide sufficient ammunition to either preclude or limit the effectiveness of the opposing side’s medical evidence.Although a comprehensive analysis of these rules is beyond the scope of this paper, it is always helpful to re-review these sections and their annotations when preparing for trial. For instance, you may have hearsay testimony which cannot be introduced into evidence. However, an expert can rely upon hearsay to form his opinion and this may give you the ability to let the jury hear this otherwise excludable evidence.You can also use the rules of evidence to your benefit in creating summaries of charts, records, etc. under rule 1006. This will enable you to introduce evidence which you used before for only demonstrative purposes.In short, understanding the technical points of evidence law is critical to mounting a successful challenge to your opponent’s medical evidence.Challenge Your Opponent’s Expert Through Cross-ExaminationNotwithstanding the weapons afforded by the rules of evidence for challenging your opponent’s medical evidence, there is no substitute for a powerful cross-examination of your opponent’s expert. An effective cross-exam usually begins with a thorough and well-prepared discovery deposition.Many experts spend more time preparing for trial than they do for their depositions. This is especially true for experts who have been deposed many times. Their deposition is usually conducted after a busy day of office hours when they are tired. They go through the motion of testifying assuming they can handle the opponent’s attorney.Although this aspect by itself could form the entire basis of a workshop, a couple of key points should be noted in setting up an effective cross-examination of an expert.First, during his deposition, do not attempt to impeach the expert with prior writings or testimony. He will only be more prepared to address these issues at trial.Second, do not strongly challenge the testimony during his deposition. Remember, the most effective cross-exam at trial occurs when you give the expert the rope which he uses to hang himself. You can establish all of his opinions given various hypothetical facts without alerting him to your trial questions.Third, elicit testimony during his deposition which contrasts or even contradicts your opponent’s other experts. There is nothing more damaging at trial than when his three experts all disagree with each other and your experts are all consistent.Finally, at trial, unless it is really necessary, try and resist the temptation of attacking the opposing expert in a bull dog fashion. This can easily turn a jury against you