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Get the Most Out of Your Client’s Medical Records

(and Minimize Your Opponents’ Advantages)

By:  Steven A. Heimberg, M.D., J.D.

Virtually all medical malpractice injury litigation requires the plaintiff to collect and analyze the victim’s medical records.  Unfortunately, more often than not, one or more of the defendants (either directly or through back-channel, insurance-company connections), has better access to these records than do you or your clients.

This is particularly true in medical malpractice cases, in which the defendants’ medical records are the main non-testimonial source of evidence, and often the only source of inculpatory evidence available to the plaintiff.  Knowing this, defendants routinely generate medical notes presenting the facts in the light most favorable to them.

These self-serving chart notes, they hope, will serve either as a defense or a deterrent to ever bringing a lawsuit.

In some instances, the chart will have been “buffed”.  That is, although the records will not actually have been altered, they will have been creatively scripted to present a defense.  In fewer (but still surprisingly many) cases, the records actually have been changed, “lost” or destroyed.

Further, medical facilities (for both innocent and not-so-innocent reasons) have devised systems whereby relevant medical documents in their possession are routinely withheld from plaintiffs and plaintiffs’ counsel. 

Many records are withheld pursuant to excuses of protecting other patients’ privacy or secondary to a claim of evidentiary privilege.  Others are withheld merely by arcane record-keeping systems, in which obviously relevant records are deemed not to be part of the “designated record set.”

These tactics place plaintiffs in a precarious position.  The potential perils of possessing inadequate information often become realized as litigation progresses.  The defendants’ lay and expert witnesses often have available to them records and attorney-provided information not available to the plaintiff. 

This enables defendants to sabotage the plaintiff’s case, primarily by eliciting concessions from the plaintiff’s experts regarding facts unknown to (and unknowable by) them at the time of deposition.

Fortunately, diligent plaintiffs’ counsel can turn many attempts by defendants (to buff, fiddle with, lose, hide or withhold medical records) to their clients’ advantage.  For example, concocted statements invariably limit the positions that the defendant can take at deposition and trial, and permit plaintiffs’ counsel to focus their investigation.

If there is a sufficient amount of written material, there virtually always will be inconsistencies between the wishful positions created by the defendants and other sources of information in the medical records.  And a few legal tactics can go a long way towards limiting or punishing defendants’ attempts to deep-six or withhold medical information.


The keys are: (1) knowing where to look, how to look and what to look for; and (2) knowing some of the legal buttons to push.


This sounds simple enough.  However, to do effective medical detective work, plaintiffs’ counsel must become familiar with the variety of medical records available and where they are located.

   A. Records from Hospitals

  1. How to figure out the records that should be available and that might provide useful information.
  • Go to medical school
  • Consult early with your expert
  • Use a med-legal consulting service
  • Commit this brilliant tome to memory
  1. The following are the types of records that usually can be found in a patient’s individual hospital chart:

!     Discharge Summary

!     Emergency Room Records

!     Admission Records (including admission history and physical)

!     Consultation Reports

!     Pre-hospitalization Records (e.g., prenatal care, paramedic reports)

!     Physician Progress Notes

!     Ancillary Provider Records (e.g., RT, OT, PT)

!     Laboratory Reports

!     Radiology Reports

!     Operation and Procedure Reports

!     Consent forms

!     Physician’s Orders

!     Medication Administration Record

!     Graphic Charts (e.g., vital signs, intake-output)

!     Flow Sheets (ICU, L&D, etc.)

!     Nursing Notes

!     Discharge Instructions


  1. There also are numerous documents that a hospital maintains that apply specifically to one patient but generally are not included in that patient’s medical chart. Significantly, these documents will rarely be produced pursuant to a standard request to the facility for a patient’s medical records.  This category of records includes:

!     Requisition slips (requesting consultations, x-rays, pathology review, referral authorization requests, etc.)

!     Records from specialized units (e.g., radiation oncology, pre-hospitalization fetal monitoring strips, even ICU progress notes)

!     The “administrative” chart (transport records, records of conversations between treating hospitals, records of who has checked out chart).  Compare with the defendant-friendly administrative documents, such as consent forms and “conditions of admission.”

!     Billing records

!     Anything else that the hospital has deemed not to be part of its “designated record set”


  1. There also are numerous materials generated or compiled by the hospital that pertain to groups of patients.  These materials, such as those below, also are never included in the patient’s chart or in response to a standard request for the patient’s records, even though many include information specific to that patient:

!     Delivery logs

!     Surgical logs

!     Call schedules and emergency contacts

!     Formulary/pharmacy records

!     Patient census sheets (by service and by the doctor)

!     Patient acuity data

!     Staffing assignments

!     Departmental and hospital-wide protocols for nurses

!     Practice standards and guidelines for house staff   (e.g.PACLAC protocols)

!     Elam documents

  1. Hospital privileges applied for or granted to the doctor(s) in question
  2. Medical by-laws

!     Agreements between the facility and the other healthcare providers/co-defendants


  1. There also are numerous records specific to the patients that have been specifically removed/segregated from the patient’s hospital chart (usually based on some claim of privilege).
  • Incident reports
  • Peer review documents

   B. Other Facility Records

  1. Physicians records
  • Medical records themselves – – easy to alter without detection. Request them ASAP, often through patient before litigation.
  • Billings records with all CPT and ICD-9 coding
  • Letters to patients and other providers
  • All “financial responsibility” papers shown to the patient
  • Business cards
  • Appointment cards and appointment books
  • Patient sign-in sheets
  • Physician calendars
  • All literature is available in the office to be distributed to patients.
  1. Pharmacy records
  2. HMO records
  3. Paramedic records
  4. Private laboratory records


   A. Look for Inconsistencies Within the Records from the Facility where the incident occurred.

Hospital charts are complex documents.  It is difficult for even the most creative defendants to invent a story that remains consistent across all times, all providers, and all disciplines.

A careful review often will reveal substantial amounts of conflicting and even flatly contradictory information.  The more comprehensive the records, the more likely that attempts to re-create history will produce inconsistencies.  There are certain records that are especially fruitful to compare:

  1. Notes of different providers

!     Nurse progress notes vs. physician progress notes

!     Ancillary health provider histories vs. physician histories (including the patient’s course in the hospital)

!     Consultant notes vs. notes of the defendant physician

!     Notes from different services regarding the same general set of facts (NICU vs. labor and delivery notes)


  1. More contemporaneous notes to less contemporaneous notes:

!  Progress notes (even if “timed”) vs. medication

records, physician’s orders, nurses’ delivery summaries, flow sheets, anesthesia records, etc.

!     Notes prior to the patient’s deterioration vs. post-deterioration notes

!     Dictated notes vs. handwritten notes

!     Later dictated notes vs. earlier dictated notes (e.g., discharge summary vs. an admission history and physical)


  1. Reports vs. actual source material

!     X-Ray reports vs. films

!     Pathology/autopsy reports vs. slides/tissue

  1. Miscellaneous documents that may conflict with the rest of the medical records

!     Requisition Slips

!     Pharmacy Records

!     Billing Records

   B. Physician Defendant’s Office Records

!     Internal inconsistencies — far fewer and more difficult to detect (primarily one author, few external controls over major re-writing)

!     Inconsistencies with outside records (e.g.,  office vs. hospital prenatal care flowchart; outside laboratories)

!     Inconsistencies with records generally given to the patient (e.g., prescriptions, appointment cards, business cards)

!     Inappropriately benign records (e.g., ultimate diagnosis incompatible with findings on a prior visit)

   C. Look for Too-Well-Kept Secrets

  1. Critical information never disclosed to other involved caregivers
  2. Claimed concerns of the defendants not reflected by subsequent actions; never looked at the placenta, no antibiotics are given, no return appointment is given, etc.

   D. Look for Conflicts Between the Records of Other Providers and Those of Facility Where the Incident Occurred.

  1. Obtain records of the entire incident in question, from the beginning of deterioration to stabilization.
  2. Obtain records of previous treaters to rebut the anticipated defenses

!     Causation defenses (e.g., non-existence of claimed pre-existing conditions)

!     Negligence defenses (e.g., records showing condition could have been, and in the past had been, anticipated and effectively treated)


  1. Obtain records of subsequent treaters who are unrelated to defendants or defendants’ facility

!     More accurate information regarding lab results, time delays, signs and symptoms, the defendants’ actual diagnosis and concerns, and any other history needed for the subsequent providers’ accurate diagnosis and treatment

!     Subsequent supportive damage analysis (e.g., MRI scans, child’s functional abilities, etc.)

!     Bad news (but you get it first)

   E. Be On the Lookout for Red Flags

Some things in medical records scream for attention.  Stated simply, look for irregularities.  For example, the following do not “occur in nature” and should always prompt further investigation:

  1. Slamming the patient, particularly after the incident
  2. Documents with titled cover pages
  3. Medical articles in the chart
  4. Peculiarities in entries

!     Out-of-order entries

!     Non-dated entries

!     Entries referring to times subsequent to the stated time of the entry

!     Interlineations

!     Cross-outs


         A.  Get Records of Other Patients of Defendant Providers

  1. To rebut claims of defendant’s custom and practice
  2. To rebut alleged justifications for delay or unavailability

    B. Consider Hiring a Forensic Document Examiner
  3. Useful for detecting missing or altered records
  4. Examples of techniques
  • Embossing
  • Spectrophotometry
  • Infrared

    C. Obtain Electronic Data and Associated Evidence
  1. The documents themselves
  • E-mails to and from experts
  • All earlier drafts of entries
  1. Medical records software
  • Presence or absence of alteration safeguards
  • How late entries must be entered
  1. Consider hiring experts in detecting computer alterations/deletions


          D. Get Verifications of the Record Sets Received

    1. Proper requests for records under C.C. §1158
    2. COR depos
  1. RFA that no further records relating to the patient, whether or not privilege claimed, in the defendant’s possession or control

    E. HIPAA – Your New Best Friend


    1. What is HIPAA?
  • The Health Insurance Portability and Accountability Act (Federal)
  • A law mandating continuity of health insurance coverage, it incidentally includes numerous gold-     mine provisions regarding rights to medical records
  • Between federal and California law, “more stringent” (generally plaintiff-friendlier) provisions of HIPAA always prevail
  1. To whom does HIPAA apply?
  • All “Covered Entities” including:
    a. Health plans (insurers, HMO’s)
    b. All health care providers (presumably at least as broad as MICRA definitionwho transmit data electronically (most – – determine with early discovery)

All “business associates
a.Persons/entities not employed by the covered entity but who have access to protected information
b. Includes attorneys for covered entities (that is, defense counsel in your cases)

3. Provisions in HIPAA to make your day

  • Access provisions
    a. Patients (and thus plaintiffs) have a virtually unfettered right to:
    – inspect their records
    – obtain a copy at a nominal costb. Accountings for disclosures
    – Plaintiffs have the right to know when any of their protected health information has been disclosed
    – Plaintiffs can demand free accounting from each covered entity/associate each 12 monthsc. Covered entities and business associates must use appropriate safeguards to ensure properly limited disclosure
  • Forcing disgorgement of a complete record set
    a. Entitled to “designated record set”

– Defined to include all info used to make decisions regarding the patient.

  • Improving the content of the medical records
    a. HIPAA allows patients to offer corrections/amendment to medical records
    b. HCP’s potential responses to proposed changes

– Grant request

– Deny, but then usually must:

    • Upon request, include proposed amendment in the record itself
    • Certify that record is “accurate and complete”

c. May be done with records from more willing non- party treaters

  • Preventing defendants from using medical records not made available to you
    a. Inform defense attorneys that, under no circumstances, are they authorized to disclose information or documents beyond the “designated record set”
    b. The “minimum necessary” rule limits use and disclosures to the minimum amount necessary to effect the purpose
  • Preventing ex parte contacts with treating doctors:
    • The privacy provisions of HIPAA trump any state law that arguably previously allowed defense counsel or insurers to speak with (or obtain documents from) HCP’s, other than their actual client, absent specific consent by the patient.
  1. Why defense attorneys are likely to comply with HIPAA:
  • Must have a specific written agreement with HCP clients    and with experts that impose duties to safeguard the     info
  • Failure to meet requirements may force HCP client to terminate the relationship
  • Penalties, fines, and imprisonment