The Risk Manager, Fall 2007

By Retired Judge Stan Billingsley

Editor’s Note: This article is one of a series that LawReader.com has agreed to provide for Lawyers Mutual’s newsletter as a bar service. LawReader.com provides Internet legal research service specializing in Kentucky law. For more about LawReader go to www.LawReader.com.

KRS 422.317 requires a hospital or health care provider to give to a patient without charge a complete copy of his medical record upon written request by the patient. Notwithstanding this law, lawyers advise me of the occasional, but potentially disastrous, incidents of hospitals and health care providers failing to deliver complete medical records under their control.

While many hospitals have digitized their records and usually provide excellent access to parties authorized to view them, smaller clinics, and particularly physicians’ offices, on occasion do a haphazard job of compiling all medical records. Some hospitals or health care providers simply do a poor job of going through their medical records and negligently omit portions of the record.

The result is the lawyer that does not review original records and compare them with his client’s history of treatment, may find to his embarrassment that essential documents were overlooked. This could give an advantage to an opposing lawyer who obtained a complete medical file. Examples of this are when you are confronted with critical medical records for the first time at trial, or your expert medical witness working with incomplete medical records has his opinion discredited when his incomplete knowledge of the case is shown on cross-examination.

You can manage this risk by taking a few simple steps:

• Before you obtain medical records, get from your client a thorough history of his treatment including the medical conditions for which treatment was sought, the procedures preformed, and the dates of treatment. Emphasize that the purpose of this review is to see if there are any gaps, missed procedures, missed blood or lab reports etc. Have the client show you billing statements received from Medicare and others that show services received. Provide this information to the physician in your discovery request.
• After you get the medical records, go over them with your client by comparing them with his knowledge of his medical history with emphasis on identifying missing records.
• Pay close attention to dates in looking for gaps in the records.
• If the record pages are numbered, look for missing pages.
• If your client reports a medical condition that the records do not show, find out why.

Following these procedures should protect you from a claim of malpractice if a key missing record is later introduced at trial. Some of the more successful personal injury lawyers go a step further by employing the services of a nurse who is trained in reading medical records or consulting with opposing counsel to compare the completeness of key medical records.