How can you be certain that you have all of the records of your potential personal injury client? One of the most frustrating parts of medical malpractice cases, and nursing home cases, and auto accident cases – and every other kind of injury case – is obtaining ALL of the records. I will give special attention here to nursing home cases because, in my experience, they are the most difficult to deal with.
Here are some helpful hints that may (no promises) help you start the case with a complete set of records and all material concerning your client.
I. Identifying All Treaters
You cannot obtain all of the records without being aware of each and every place your client was treated. You have no idea who your client saw. She may not remember each doctor or treater. In your first meeting with the client or her family, you must aggressively discuss who she saw, including:
1. Which ER was she taken to?
2. Which ambulance company took her there?
3. Who was her family doctor prior to the accident?
4. Who is EVERYONE she saw after the accident?
5. Where was her surgery performed?
6. Where did she undergo rehabilitation and/or physical therapy? Was it at more than one facility? (Each doctor or network has a preferred physical therapy provider, so if she has switched doctors, her various courses of physical therapy could be at different places).
7. Did she see her treaters in the hospital or also at their separate office? (Whether there are two separate sets of records varies, but you must request from both places).
8. Where were her prescriptions filled?
9. Who is her health insurance provider? Is there a paper trail of payments to health care providers?
Most likely your client will not recall everyone he or she has seen, so be alert to names of other health care providers which appear in the records. For example, you may see:
“I am referring Mr. Jones to Dr. _____ for pain management.”
or
“ I have reviewed the consultation report of Dr. _________”
or
“I am sending Sarah to Sports Rehab for physical therapy.”
In addition, you may find actual letters or reports from health care providers in the medical records provided to you from someone else. These are often documenting consultations which took place.
II. Asking for the Documents Correctly
When you contact a health care provider to obtain medical records, always ask for a “certified” copy. This is important because without a certification that you have the entire record, and a count of how many pages you are being provided, you have no protection against the defense attorney (or the provider) showing up at trial with additional records that you do not have. Keep your certified copy intact, and use a copy of that set for your work-up of the case.
It is important that you use expansive words when asking for the records. For example, use phrases like:
1. Mrs. Smith’s “entire record”
2. “Every piece of paper” regarding Mrs. Smith
3. All computer records regarding Mrs. Smith
In nursing home cases there are special problems. It is very, very important that you use special care when obtaining nursing home records because nursing home personnel are extremely reluctant to release records.
One of the greatest misconceptions among occasional nursing home litigators is that nursing homes keep all of the residents’ care and treatment records in the “chart.” What exactly is a “chart?” Are there any regulations that require all care records to be contained in the “chart?” No. Are there any industry standards delineating what records are kept in the “chart?” No. Are we doing our job when we simply rely upon the records produced in the “chart?” No.
Under federal law (specifically, the Nursing Home Reform Act of 1987, which is more commonly referred to as the OBRA Regulations), there is no specific definition of a nursing home “chart.”
I have found that industry employees (records clerks, nursing home administrators, and nursing home executives) each have their own definition of what constitutes the “chart.” Some believe it contains all care records. Some believe it contains only those records which are contained in the hard copy chart which is kept in the nurses’ station. Some believe it contains whatever records will help the nursing home in defending itself in litigation, but does not include any records which will tend to prove poor care and treatment.
Regardless of what the definition of the “chart” means to the nursing home, we need to be alert to the fact that the records produced as the “chart” very rarely contain all of the resident’s care records.
When we first begin litigating a case, we should request all records reflecting or recording the care and treatment given to the resident. We, almost invariably, receive a response from the nursing home, the insurance company, or the insurance defense lawyers that they have previously produced the “chart.” We remind them that we have not asked for simply their version of the “chart,” but we want all care and treatment records, regardless of whether they are contained within their technical and unilateral and self-serving definition of the “chart.”
III. Strategies to Obtain All of the Care and Treatment Records at Nursing Homes
When you first get involved in a nursing home case, you should send a “preservation of evidence” letter. When you send the letter of retainer to the nursing home, include language asking the nursing home not to destroy relevant evidence. As soon as a defense attorney appears in the case, send him or her a similar letter.
A key issue in any nursing home case is finding out what documents exist. In order to be sure that you have all of the care and treatment records, you first need to know what care and treatment records exist. It is very important that you talk to the Director of Nursing, nurses, and nursing assistants to find out what documents they utilized during the time period your resident was at their facility.
In our standard Director of Nursing deposition, we ask the D.O.N. about all of the documents which are kept concerning care and treatment. This takes considerable time (and patience), but we rarely leave this deposition without some new knowledge.
Immediately after the Director of Nursing deposition (and or critical treating nurses and nursing assistants), we send a case-specific request for production which details the specific documents named. We reference the page numbers from the deposition we find helpful in subsequent discovery hearings when the other side indicates the requests were “vague” or “ambiguous.”
Another great source for finding out what documents exist is searching other cases against the same nursing home. It is helpful to speak with other trial lawyers who have looked through other residents’ charts at the same facility, and look through depositions from other cases to see if different documents exist during the same residency time periods.
Another helpful resource in determining which records may be available is to review policies and procedures manuals. The nursing policies and training manuals will generally contain attachments that detail the documents to be utilized in the care and treatment records. We specifically request the documents referenced in the policy manuals and delineate the exact policy manual and page number where these documents are referenced.
It is also helpful to review nursing home surveys. As part of the survey process, a nursing home will prepare a “POC” or Plan of Correction to rectify the citations. In the POC, the nursing home will frequently reference documents that the staff either should have been using or in which the nursing home specifically promises the state that it will be using certain documents in the future.
IV. Statutory Authority for Obtaining Records
The patient’s right of access to his or her medical records is contained in Wis. Stat. § 146.83, titled, “Access to patient health care records.” It provides that a patient may inspect his or her health care records during regular business hours with reasonable notice, or may receive a copy of the record upon payment of fees.
In the nursing home context, the Federal OBRA Regulations provide that a resident has the right to access his or her records within 24 hours after making an oral or written request, or can purchase a copy of the records at a cost not to exceed the community standard for photocopies with two working days advance notice to the facility. 42 CFR 483 (b)(2).
V. Other Helpful Tips and Practice Pointers
Regardless of the type of case, it is very important that you look at the original records early. We set the records custodian’s deposition as our very first deposition and carefully review each and every page in order to be sure we have received all of the documents. It is amazing how many times we have not been given everything.
It is important to obtain and review a color copy. When we have decided to pursue a case, we always obtain a laser color copy of the chart. The color copy is essential if you are going to pursue a case.
I believe it is important to work with a bate-stamped copy. We also request that the original chart be bate-stamped and our color copy be made after the original is bate-stamped. This enables all attorneys (plaintiff and defense), and all experts to work from the same chart with the same sequential numbers.
Keep an eye out for surprises. Sometimes one record will refer to another one that you do not have. Nursing homes will sometimes produce different records to the defense experts than they have produced to the plaintiff’s attorney or even their counsel.