Tips for Unlocking Medical Records That
Will Make a Paralegal’s Job Easier

Experts provide the keys to requesting, obtaining and reviewing
these important documents.

By Karen Clark, MS, RN; Patricia Iyer, RN, MSN, LNCC;
    Barbara Levin, BSN, RN, ONC, LNCC;
    Mary Ann Shea, JD, BS, RN

July/August 2004 Table of Contents

The law firm where you work has just signed on a new client. The case involves client injuries, and consequently will entail obtaining and analyzing medical records. What does a nonmedically trained paralegal or legal assistant do?

Some common questions about medical records that might cross your mind are: Where are they, how do I get them, and what do I do with them once I have them? This article will help demystify the process of gleaning medical information from the records, and help paralegals move the case forward.

What records do you need?

To decide what medical records to request, you must first identify all the healthcare providers your client has seen. It’s best to have a detailed form for each client to fill out, listing all physicians seen, the dates, the complaint, the treatment, tests, medications and the outcome of the treatment. The form should be detailed enough to include all contact information for each provider listed — names, addresses and phone numbers. It’s essential the client fill out the form thoroughly and completely. This will help you identify which records you must obtain, and which ones you might forego. Keep in mind, the more information you gather in the beginning, the easier it will be to answer questions that come up later.

Once the medical history review is complete, go through it in detail. Medical records are expensive to obtain so you don’t want to spend money on unnecessary records. On the other hand, you must be very careful to include all records that might relate to the current case.

For example, if the client was injured in an accident and is complaining of chronic back pain, you probably would not need the records of visits for colds, flu or ingrown toenails. But you would want to review all records related to previous accidents, and all records regarding treatment of prior back, neck and leg pain. Or, if the case involves birth injury, you might forego the records from an accident occurring 10 years prior, but you would want all records related to the pregnancy, and perhaps records from prior pregnancies.

It’s best to be overly inclusive when choosing which records to obtain. It’s better to end up with records you don’t need than neglecting to obtain records containing pertinent data. This is a mistake many attorneys make. It’s good to be frugal, but there are associated risks with making costs the priority.

When requesting records, be sure to request all records in the provider’s possession. When you receive records, carefully compare them to the medical history provided by the client. Don’t assume you have received all the records, especially from hospitals. Even if the records are accompanied by a notarized affidavit, the affidavit generally attests to the fact the records are authentic copies, not that they are a complete set.

Where do you obtain the records?

Each medical service provider is obligated to provide records. It’s wise to call the provider if you don’t know the proper procedure for requesting records. If you follow their directives, you will find your request might be honored more quickly.

By calling, you also will find out which records are not available through a particular provider. For instance, a call to the outpatient clinic might lead to information that the physical therapy records are not in the clinic department but in the physical therapy department. You might also learn that electrocardiogram or electronic fetal heart monitor tracings are kept separate from the rest of the chart and must be requested separately.

In some situations, the records might be accessible directly through the physician’s office. However, now it’s common practice for physicians’ medical practices to be owned by a healthcare system or a hospital. In this case, you might need to request the needed records from a central records location of the corporation with whom the doctor is affiliated.

How do you get the records?

Healthcare providers are required to maintain the patient’s confidentiality, and are prohibited from releasing personal health information without proper authorization. To gain copies of your client’s records, you will need a very thorough form completed by the client authorizing the healthcare provider to release information to you.

The process of medical record procurement became more complicated with the enactment of the Health Insurance Portability and Account-ability Act in 2003. Much confusion still exists about what, when and how medical information safely can be released by healthcare providers. This confusion has resulted in healthcare providers being more reluctant to release information for fear of violating HIPAA.

Authorizations to release medical information must be HIPAA-compliant. Most large healthcare providers, such as hospitals, now use new authorization forms that meet HIPAA requirements. Many healthcare providers are reluctant to honor any but their own forms. If you are required by a healthcare provider to use their form, be sure to have the attorneys in your firm evaluate it thoroughly. You must be sure it will give you access to all of the records you are seeking.

The HIPAA requirements are complex, and often result in more questions than answers. There are numerous helpful resources available, including www.hhs.gov, www.hipaa.org and www.hhs.gov/hipaa, just to name a few.

You should have your client sign several authorization forms during that first meeting. Be sure you have more signed forms than you have healthcare providers on the client’s list because you might find out about additional providers from whom you also will need records.

It’s also a good idea to state in your authorization that a photocopy of the signed form is acceptable in case you run out of signed forms, so you don’t have to call the client into your office to sign additional forms at a later date.

Minors and incompetent clients can’t legally consent to release their medical information. Consequently, you will need to obtain the authorization of the parent or legal guardian in these types of cases.

In addition, state law will dictate who is specifically authorized to sign for those types of clients. Be sure to check for state-specific directives in the consent laws of your state.

When do you get the records?

You should request the medical records as soon as the attorney has decided he or she is interested in having the case reviewed. This process can take quite a long time since you might be requesting the medical records from numerous hospitals, as well as physicians.

You should discuss with your attorney when you should secure the medical and hospital bills, as well as pharmacy bills and prescriptions. These records help to calculate the damages in the case. In addition, it’s advisable to obtain records from third-party payors because occasionally you will find the client might have forgotten that he or she has been treated by certain additional healthcare providers. This gives you the opportunity to request additional medical records, and assures a more complete analysis of the case.

You will experience a wide range of responsiveness among medical providers when requesting records. Some medical providers will forward records right away, but others will not. You might need to send several requests before you actually get the records you need. The entire process can take months, and you must keep this timeline under consideration.

What do you do with the records when you receive them?

As soon as you receive a complete set of the medical records, you should sort and organize them. Check with your attorney for his or her preference. Some attorneys like to use a three-ring binder, while some prefer not to hole punch the records.

Include subsections, which should be tabbed and marked. Examples of these subsections are “Progress Notes,” “Intake and Output,” “Laboratory,” “Radiographic” and so on. Once this is complete, you should make an index of all major sections along with their subsections. This will ultimately save time and maintain organization of the records.

Next, you must determine if you have received a complete set of medical records. A chart similar to the example at the bottom of the page helps to keep track of which documents have been received.

There are several ways to number or Bates stamp the medical records. This can be done manually, or you can use a software program for numbering the pages. This process will enable the attorney and expert witnesses to refer to specific page numbers within the medical record.

Once you have the entire record organized, it’s advisable to make working copies for yourself and your attorney. Keep the original intact for later use should the case go to trial. Remember, there is more than one method for organizing medical records.

How do you analyze medical records?

As you organize the medical records, you should be checking the records received against the chronology of the client’s claim. The medical records should follow along in a chronology and thus you can determine if there are missing documents. You must have the complete set of records for all possible aspects of your client’s claim.

For example, if your case involves a surgeon who allegedly left behind a trocar and sponges in a patient’s abdomen, you must be certain you have a full set of X-rays and the radiology written reports for your client.

Review the chart and identify the physician’s progress notes and consultant’s notes. In a hospital record, the primary physician should be documenting patients on a daily basis. If you discover an absence of daily notes, then you might question whether or not the patient was evaluated daily. Were there dictated notes not included within your set of medical records? Is there a copy of this dictation within the chart?

If you find you are missing records, you might need to contact the consultant who participated in the patient care. At times these consultants keep their own set of medical records related to a particular patient.

Keep in mind, there are many ways to analyze and review records — there is no one correct way. It might be helpful to prepare a worksheet charting the events of each day. The worksheet might have columns designating dates, providers and treatment rendered. This is a good way to find discrepancies within the records. For example, the intern, primary physician and nurses might have conflicting information in their progress notes. Or the physician might have noted there were no intraoperative complications, while the anesthesia records indicate the patient had a hypotensive event necessitating the need for vasopressor medications.

The complete and accurate analysis of medical records is a key component in the success or failure of the case. Some cases will require extensive review of complex medical information. If you find the medical information is too overwhelming, you might decide to obtain the assistance of a medically trained professional or legal nurse consultant (see “Legal Nurse Consulting” September/October 2003 LAT) to assist in helping you and your team understand the medical information.

How do you organize and report the information?

After the information is collected and organized, writing the report is the next challenge. Determine who will be reading the report and which format will enhance the reader’s comprehension of the facts and ideas being presented. The decision might be to use a detailed chronology or a short memo. The material might require a more formal report or perhaps a chart analysis.

Whatever the decision, it’s the responsibility of the writer to be clear, concise and accurate.

What do you watch for when reviewing medical records?

The reviewer’s responsibility when reviewing medical records is to look for evidence to support or deny the elements of negligence. The four elements of negligence are:

• A medical duty must exist
• There must be a breach of this duty or standard of care
• A proximate cause must be evident between the breach of duty and the damages incurred by the patient
• Damages or injury must be suffered by the plaintiff.

The medical records must be analyzed by a knowledgeable healthcare practitioner to determine if the standard of care was followed. Information deliberately might be not recorded, making it more difficult to establish what occurred. An expert witness with an appropriate level of training and experience might be needed to assist in the analysis of the case.

Experts can be found through many sources: word of mouth referrals from other law firms, professional publications such as journals or texts, jury verdict publications, Web sites such as the American Board of Medical Specialists (www.abms.org) and referral services. When looking for a medical expert, keep these key points in mind:

• A case involving a physician defendant should be reviewed by a physician with similar background and training.
• Increasingly, physicians are not being allowed to testify about the nursing standard of care because nursing is being recognized as a specialty separate from medicine.
• Some states have regulations restricting the ability to involve specific categories of expert witnesses. For example, a state might specify the individual must have been in active clinical practice within a certain number of years of the incident, or not spend more than a certain percentage of time doing expert witness work.

What resources are available to help you through the records analysis process?

The American Association of Legal Nurse Consultants has many resources available to help you evaluate options for choosing a method of medical record organization and reporting. AALNC’s “Legal Nurse Consulting Principles and Practice” and “Essentials of Medical Records Analysis” are two of the possible resources you might consider. AALNC has several resources to assist legal assistants in understanding medical issues. In particular, “Legal Nurse Consulting Principles and Practice” is the core curriculum for the specialty area of nursing. This comprehensive text has chapters on analyzing medical records, locating expert witnesses, and several other aspects of litigation.

In addition, excellent examples of written reports can be found in AALNC’s “Growing your Practice: Resources and Tools for the Legal Nurse Consultant” and “Sample Reports For Legal Nurse Consultants.” The Web site (www.aalnc.org) also features an LNC Locator to help find nursing experts, as well as other information to help you with medical records.

Working your way through the tasks of obtaining and reviewing medical records can be daunting. The clues to many personal injury, medical malpractice, products liability or criminal cases can be found buried in the medical records. A systematic method of handling medical records will make this important aspect of your job easier.

Chart for Tracking Medical Records

Karen Clark, MS, RN, AALNC President-Elect; Patricia Iyer, RN, MSN, LNCC, AALNC Past President; Barbara Levin, BSN, RN, ONC, LNCC, AALNC President; and Mary Ann Shea, JD, BS, RN, AALNC Immediate Past President, are all practicing legal nurse consultants with more than 65 years combined experience. They use their expertise to further the practice of legal nurse consulting through their membership in the American Association of Legal Nurse Consultants.