Understanding
Medical Records
in the Twenty-First
Century
All that may come
to my knowledge in
the exercise of my
profession or outside
of my profession or in
daily commerce with
men, which ought not
be spread abroad, I
will keep secret and
never reveal.
The Oath of
Hippocrates,
quoted in Brief
of Amicus Curiae,
Limbaugh v.
Florida, Case No.
4D03-4973
(4th Cir. 2004)
14
Introduction
Patient care documentation and medical record storage are in a state of transition with the
increasing conversion of these documents from paper to an electronic database. Regard-
less of whether the records are stored in this type of sophisticated format or handwrit-
ten, every time a person receives medical treatment, a record is made of that visit. This
office note should chronicle the patient’s complaints, the physician’s observations, and
outcomes as well as any treatment plan.1 It would, therefore, appear that counsel should
have an easy time in retrieving and analyzing an individual’s medical records. Nothing
could be further from the truth.
The American Medical Association’s Code of Ethics mandates that information dis-
closed to a physician during the doctor-patient relationship is “confidential to the utmost
degree.” The purpose of this rule is to allow the patient to make a complete and frank dis-
closure of information knowing that the health care provider will protect the confidential
nature of the information. This requirement has also been turned into law by federal and
state statutes that prohibit the disclosure of confidential patient information unless very
specific conditions have been satisfied. This point is especially true since the enactment
of the Health Insurance Portability and Accountability Act (HIPAA), which took effect
on April 14, 2003. Patients have now gained unprecedented safeguards concerning the
disclosure of their medical information. HIPAA is also said to strike a balance in that it
permits the disclosure of personal health information needed for an individual’s care and
other important purposes.2
Once the claimant’s medical records have been obtained, counsel is confronted with a
second obstacle—trying to make sense out of what has been recorded. The records may
not be arranged in a uniform fashion, abbreviations abound, handwritten comments are
often illegible, and procedures are listed by diagnostic codes.
As one may remember from law school, understanding court opinions required a little
time. Deciphering medical records present the same challenge. Armed with practice and
a medical dictionary, however, attorneys will discover that making sense out of the medi-
cal records follows a learning curve that can be mastered. This chapter offers suggestions
on how to make the medical record retrieval process easier and provides tips on how to
understand those documents.
638 ◆ CHAPTER 14
The Conversion to Electronic Medical Records
A major documentation change is taking place within the practice of medicine. Health
care providers are converting medical records to a paperless system as the result of
the American Recovery and Reinvestment Act of 2009 (Recovery Act). This legislation
aims to improve the nation’s health care system by promoting the meaningful use of
electronic medical records (EMR), also termed electronic health records, by dangling
“carrot” incentives to providers for seeing Medicare patients.3 Eligible Medicare health
care providers who fall within the ambit of “meaningful use” of EMR by 2013 will be
given cash incentives. These payments not only are provided after implementing EMRs
but also will be given for the process of testing and procurement of a certified EMR sys-
tem. On the other hand, the “stick” to providers and facilities that fail to show certified
EMR systems by 2015 will be harsh financial penalties. For example, eligible medical
professionals who elect not to comply with the implementation plan will have to forgo
Medicare Part B payments of 1 percent in 2015, 2 percent in 2016, and 3 percent 2017
onward.4
This “stick” of financial penalties may ultimately result in the failure of the Medicare
system. Current reimbursement for seeing a Medicare patient runs about 30 percent
of gross charges with commercial payer reimbursement at approximately 60 percent of
charges. At the time of this writing, the government is proposing further cuts in Medicare
payments. Medicare’s 2013 physician fee schedule contains a 26.5 percent pay cut based
on the Sustainable Growth rate formula and, for the specialty of neurology, an additional
7 percent cut in reimbursement.5 When these low levels of Medicare reimbursement are
added to the $1 million to $1.5 million cost of installing and implementing an EMR sys-
tem required to see Medicare patients, many medical practices will be unable to absorb
such financial burdens. Deep cuts in a payment system that already reimburses at barely
overhead levels may result in physician office doors being closed to Medicare patients.
The government has advanced a number of reasons for this conversion, such as that
EMRs can bring a patient’s complete health information together in one place and is
always up to date—clinicians will always know the drugs or treatments prescribed by
another provider, so care is better managed; individuals can have their prescriptions
ordered before they leave the provider’s office, and insurance claims can be submitted
immediately from the provider’s office; and an electronic system can link information
with patient computers to point to additional resources.6 Further, with regard to the
claim of improved transfer of patient information, a number of different EMR systems
are used throughout the United States, with over 20 vendors promoting their systems.
These systems range from larger ones for hospitals and large health care systems to
medium to small systems.7 However, most of these systems are unable to communicate
with each other, eliminating the ease of patient information transfer.
What does this electronic conversion of medical records mean for the legal profes-
sion? This anticipated utilization of EMR systems puts attorneys on notice that they must
understand what to look for, where to look, how to access the necessary information,
and how to explain to the medical records custodians what documents are missing.8 The
paperless version of medical records should have the same parts as the paper format, but
some components will be combined and others may not print out automatically. Often,
such as in the Epic EMR system, pages of medically irrelevant information is compiled
and stored as well. Counsel needs to be mindful to secure all of the individual parts,
because those responsible for assembling the completed medical record will not always
realize these records are available, reproducible, or relevant to the patient’s case.9
The Need to Obtain the Medical Records
It is important to obtain a claimant’s medical records to ascertain the nature of the injury,
to document or refute the alleged medical problem, and to establish a value for the claim.
Counsel for the plaintiff must obtain the medical records to investigate the merits of
the claim and to properly document the injury. The records are also important so that
UNDERSTANDING MEDICA L RECORDS IN THE T WENTY-FIRST C ENTURY ◆639
counsel may learn about adverse health issues, such as prior claims or preexisting medical
problems that may play a role in the current complaints. In this regard, counsel for the
claimant has a much easier task in retrieving the records since the client is not adverse
and a properly worded and executed medical authorization should suffice.
The HIPAA Privacy Rule
The one- or two-paragraph medical authorization signed by the client is no longer the
magic wand for obtaining the records. The authorization must now comply with the
HIPAA requirements as set forth in 42 U.S.C. §§ 1301 et seq.10
The HIPAA Privacy Rule creates national standards to protect a patient’s medical
records and other personal health information and applies to health plans, health care
clearinghouses, and those health care providers that conduct certain health care transac-
tions electronically. HIPAA mandates certain safeguards to protect the privacy of per-
sonal health information, and sets limits and conditions on the uses and disclosures that
may be made of such information without a patient’s authorization. The Privacy Rule also
provides patients rights over their health information, including the right to examine and
secure a copy of their health records and to request corrections.11
Generally, a health care provider has 30 days to produce the requested records follow-
ing receipt of a properly worded and executed authorization. Notification must be made
if the health care provider can not comply with this time mandate. This time period may
be accelerated by state law.
How to Expedite Receipt of the Records
To expedite the receipt of medical records or to reduce the chances of encountering
problems, counsel should check with the health care provider to ascertain if a specific
form is required. For example, some hospitals are very demanding about the wording of
the medical authorization and will not release the records unless specific language is used.
Also, certain records enjoy an additional layer of protection. These include the disclosure
of drug and psychiatric information, which require a specific authorization that satisfies
the appropriate legislation on these issues. For instance, records dealing with substance
abuse are protected by 42 C.F.R. part 2, Confidentiality of Alcohol and Drug Abuse
Patient Records, and section 543 of the Public Health Service Act.
Many states also have their own statutory scheme for obtaining records that is sub-
servient to the federal laws but may impose additional patient safeguards. For example,
Pennsylvania has its own statute on the production of medical records:
(1) A patient or his designee, including his attorney, shall have the right of access to
his medical charts and records and to obtain photocopies of the same, without the use
of a subpoena duces tecum, for his own use. A health care provider or facility shall not
charge a patient or his designee, including his attorney, a fee in excess of the amounts
set forth in section 6152(a)(2)(i) (relating to subpoena of records).12
Defense counsel has a different thought process in wanting to obtain the medical
records of a claimant. While a client can provide defense counsel with a description of the
accident, the client can rarely supply accurate or detailed information about the plaintiff’s
health. At a minimum, however, counsel should ask the defendant to describe the claim-
ant’s medical condition at the accident scene, find out if the claimant was walking around,
and ascertain if the claimant admitted that he or she was not injured.
Counsel for the defense should not rely on the medical reports submitted to the insur-
ance carrier by the claimant or plaintiff’s counsel. There is no mandate that these records
be complete, and plaintiff’s counsel may disclose only favorable information.
Once the case is in suit, the defense should always issue formal discovery and obtain
answers under oath. Unless court rules mandate the use of specific interrogatories, the
defense should always ask questions about the claimant’s general health, such as
• visits to doctors within the 12 months before the date of loss;
• the name and address of the family doctor;
