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

2. 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

3. 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”

4. 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

5. 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

The Trump administration has been lobbying for state legislation since the beginning of the COVID crisis. On March 24, 2020, Alex Azar, the secretary of the Department of Health and Human Services, issued a letter urging all governors to provide civil immunity for health professionals treating COVID-19.

Mitch McConnell, the Republican Majority Leader of the Senate, has been demanding that Congress provide liability protections for all healthcare providers. He has been threatening to derail any subsequent COVID-19 stimulus package that does not include such provisions.

Similarly, thirty-six healthcare provider organizations through America have been pressuring governors and others to shield healthcare providers from civil and even criminal

liability for events occurring during the COVID pandemic. These virtually blanket protections they seek would apply to doctors, nurses, nursing homes, assisted living facilities and hospitals, and would essentially obviate all their responsibility for their wrongdoing.

Caving to such pressures, 25 states already have issued executive orders or promulgated legislation to provide some greater degree of immunity to healthcare providers.

In California, six provider groups (including the California Medical Association, California Association of Health Facilities, the California Hospital Association, and the California Assisted Living Association) have been pressing Governor Gavin Newsom to make an executive order.

They have asked him to grant almost all healthcare providers almost complete immunity for virtually all wrongdoing during the pandemic. The only exceptions would be for the most egregious wrongs, and those would be made far harder to prove.

Specifically, these groups have asked Governor Newsom to decree that all providers and facilities “be immune” from “all civil, criminal and administrative wrongdoing” unless the victim can prove:

1. That the misconduct by the provider was intentional (that is being careless, lazy, disinterested, acting below acceptable standards in the community, etc. simply would not be enough);

2. Through “clear and convincing evidence” that the provider acted not only badly, but also willfully. This is an evidentiary hurdle far more difficult to satisfy than the “preponderance of the evidence” (slightly more likely than not) standard required in all other civil cases.

This seldom-used legal standard would make proving a case of intentionality against medical providers nearly impossible.

Victims have been able to meet these high hurdles on few occasions in the history of California jurisprudence, no matter how egregious the facts appear. It would be much harder to do so against healthcare providers.

This is because of: (1) the positive feelings towards the medical profession, particularly at this moment; and (2) the rare instance in which the public can believe that any professional actually pre-meditates causing the harm.

It is very difficult to prove what is inside any wrongdoer’s mind, much less a professional such as a physician or a law enforcement officer.

Moreover, the providers want this blanket protection to continue for the duration of an extremely vague “COVID-19 state of emergency.” Although that may sound on its face to be somewhat limited, there already is legislation in place protecting these providers for an actual, appropriate, declared state of emergency.