Litigation Management

Medical Record Acquisition--The Basics

The acquisition of healthcare documentation is a key element in the discovery process for all types of medical litigation. It is important to simultaneously ensure that timely, complete, and accurate information is obtained concerning the healthcare providers while keeping an eye toward budgetary parameters. Cost-effective record acquisition and utility of the documentation ultimately received need not be incompatible agendas. However, in a case involving large quantities of medical documents from multiple healthcare providers, acquisition costs alone can quickly exceed thousands of dollars. What steps can be taken to effectively manage this aspect of a potentially expensive medical-legal review?

Be Proactive!

The process of obtaining medical documentation begins with the interrogatories and/or questionnaire. Once the nature of the allegations is determined, the following potential sources of medical information should be considered as the interrogatories are defined:
• Hospitals
• Clinics and outpatient departments
• Physicians
• Chiropractors
• Dentists
• Podiatrists
• Psychologists
• Any "counselors" for emotional, marital, or other problems
• Allied health providers such as physical therapists
• Alternate and nontraditional healers
• Places of employment and any associated clinics
• Military
• School/college
• Social Security
• Workers' Compensation
• Pharmacy and drugstore
• Insurance company

Obtain Accurate References

In formulating the interrogatories/questionnaires, questions must be structured to best assist the respondent in supplying accurate healthcare provider names, addresses, dates of evaluation and treatment, etc. It may be difficult for respondents to fully recall all these details; therefore record acquisition personnel may need to verify the accuracy of this information. Useful resources to assist in this function include various reference directories, CD-ROMS, state professional licensing boards, medical associations, hospital medical staff offices, and the Internet. (Please refer to future issues of the M.I.M. Reporter for descriptions of these resources.)

Valid Authorizations

Obtaining health information for legal purposes often is accompanied by a subpoena with a valid authorization. However, most providers, depending on state laws, may process a request with a detailed request letter accompanying the valid authorization. In many cases a general authorization is first generated by counsel, signed and dated by the plaintiff, and forwarded for processing. However, larger hospitals and clinics normally require a specific authorization. On occasion, a physician's office will accept a general authorization [one on which a blank line is used for the provider's name], however this is an exception, not the rule. A valid authorization should contain the following:

•	Facility/health care provider providing the information;
•	Name or title of the individual or organization to whom disclosure is to be made;
•	Name of the patient;
•	Purpose of disclosure;
•	How much and what kind of information is to be disclosed; 1
•	Signature of the patient;
•	Date on which the consent was signed;
•	A statement indicating that a photocopy of the authorization will suffice in lieu of the original;
•	A statement that the consent is subject to revocation at any time except to the extent that the program or person which/who is to make the disclosure has already acted in reliance of it; and
•	The date, event, or condition upon which the consent will expire if not revoked before.

As signed and dated authorizations are received along with a list of providers, careful review must include the date of signature. Most hospitals and many physician offices require an authorization to be dated no more than 60 days prior to request. In many instances, a provider will accept a facsimile of the request letter accompanied by the signed authorization; however, some still require an original.

Authorizations for Psychiatric and AIDS-Related Records

Requests for psychological/psychiatric records, counseling notes, substance abuse records, AIDS records and HIV test results must be accompanied by a specific authorization. The confidentiality of records for individuals seeking diagnosis and treatment for alcohol and drug abuse is protected by federal statute (42 U.S.C. § 290dd-2). Disclosure is permitted with written consent of the patient, limited to the circumstances and purposes set forth in such consent. The form for securing the patient's informed consent is set forth in 42 C.F.R. § 2.31.

Laws regarding AIDS and HIV may vary slightly form state to state. O.R.C. § 3701.243 (also O.A.C. § 3701.3.11) provides that no health care worker/provider may reveal to any other party, the identity or test results of 1) any person diagnosed as having AIDS or ARC (AIDS Related Complications) or 2) any person tested for HIV. The exceptions include but are not limited to: the patient or patient's legal guardian, the spouse or any sexual partners of the patient, the patient's physician, persons involved in the diagnosis, care or treatment who have a medical need to know, and any individual to whom the patient authorizes a release. Requests for AIDS records and HIV test results must be accompanied by a specific authorization. Any disclosure must contain the following mandatory disclaimer: "This information has been disclosed to you from confidential records protected from disclosure by state law. You shall make no further disclosure of this information without the specific, written and informed release of the individual to whom it pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is not sufficient for the purpose of the release of HIV test results or diagnosis.

Develop a Tracking Mechanism

Once answers to interrogatories/questionnaires have been received, the record professional should implement a case management program. All healthcare provider information can be maintained in a database which includes extensive documentation regarding the name of the person responsible for release of information, special requirements for the release and payment of photocopies, and any name changes as a result of hospital/clinic mergers, etc. When medical records are received, they can then be reviewed for completeness and photocopy quality. As the documents are reviewed, additional healthcare providers may be identified which were not listed in the original interrogatory/deposition. This information is provided to counsel to determine if additional authorizations should be obtained to secure these additional records.

Locating Older Medical Records

Although most hospitals retain records on microfilm or microfiche for an indeterminate amount of time, retention policies vary, and older records may not always be available. Physician's offices are required to retain active patient records. For those patients who are inactive in seeking care from a specific provider, their medical records can be destroyed only after notifying the patient or patient's family prior to destruction; unfortunately, that requirement is not consistently followed. Nonetheless, Medicare Conditions of Participation specify "medical records must be retained in their original or legally reproduced form for a period of at least 5 years." 2

Government Records

Social Security Administration, Bureau of Workers' Compensation, Medicare/Medicaid, and Internal Revenue Services [IRS] require specific authorizations for release of information, and have a longer turnaround time for processing requests. Likewise, accession of military medical records may require longer than usual time for receipt.

Acquisition Fees

In some cases, the provider will not charge for researching, photocopying, and transmitting of medical records. In most cases, the provider will assess fees to cover the cost of their staff time and materials. The following fee structures can apply:

•	Flat Fee. For one set fee, the provider will supply all the requested records.
•	Variable Fee. For a rate of "x" cents per page, the provider will supply all the requested records. The final cost will vary depending on the number of pages of records requested.
•	Combination Fee. The combination fee is comprised of both flat and variable fee elements. For example, the provider may bill a flat $20.00 administrative fee to retrieve the plaintiff's medical records, and then an additional variable fee of $0.05 per page for photocopy services.

Future Tips and Timesavers

In upcoming issues of the M.I.M. Reporter, this column will continue to detail methods for the more effective management of medical record acquisition. Future topics will include advice on identifying additional health care providers, record acquisition cost sharing, the impact of computer-based patient records on the acquisition process, understanding medical incident reports, and further pointers on investigating providers.

Footnotes:
1- If the authorization does not specify the components of the medical record requested, the cover letter should be very specific. The date or dates of treatment is/are imperative, as well as the portions of the record which need to be included, and those documents whisch are not required.
2- 42 CFR § 482.24(b)(1).

Authors:	Elizabeth Juliano
	Karen Ness
	Carey Marousek
	James Fell

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