I. MEDICAL TREATMENT RECORDS OF THE INJURED PARTY
A. Records Of The Defendant/Putative Defendant
The first step in investigating the substance of a potential medical malpractice case is to obtain a complete and current copy of the pertinent medical treatment records. The right to obtain a "complete and current" copy of a patient's record is codified at O.C.G.A. d 31-33-2. The statute provides that any provider of medical care shall furnish a complete and current copy of a medical record upon written request from the patient. Id. The same statute authorizes the patient to designate "any other person" to receive the requested record. O.C.G.A. d 31-33-2(b).
Any party requesting a patient's medical records is responsible to the provider for the reasonable costs of copying and mailing the records, and the provider may insist upon payment as a precondition to furnishing the records. See O.C.G.A. d 31-33-3(a). Most providers willingly and honestly provide copies of their records upon request. The most frequent problem in obtaining records is securing a complete copy of the record, since most healthcare providers other than hospitals do not routinely certify records as complete. In our experience, this more casual production of records leads to somewhat less diligent efforts to assure completeness and, in some cases, a deliberate omission of important information. Little can be done to insure that a complete record will be produced upon first request. It may be necessary to make multiple requests, or demand to review the record personally prior to its duplication. Under any circumstances, all efforts to obtain medical records should be carefully documented. The authorization for medical records should be transmitted to the provider with a letter which explicitly recites that the complete medical chart is being demanded. Any additional efforts which are necessary to obtain a complete set of records should be documented in the event that the completeness of records subsequently becomes an issue which is relevant to the litigation. Examples of an appropriate authorization for medical records and cover letter are appended below.
We suggest that the "original" copy of the record which is produced should be maintained in a sealed file. Copies of the documents produced should be used for analysis, transmittal to experts, and filing, if necessary.
B. Records Of Third-Party Providers
Prior to the institution of suit, records of providers whose care is not in issue can be obtained via authorization in the manner outlined above. After suit has been filed, O.C.G.A. d 9-11-34(c) permits parties to obtain records using the standard request for production of documents. Attached below is an example of an excellent form used by Sullivan, Hall, Booth & Smith for the obtaining of medical records from third parties.
An alternative method of obtaining medical records from third parties is the "subpoena for the production of documentary evidence" which is authorized by O.C.G.A. d 24-10-22. This subpoena is used typically when a witness is needed at a trial or hearing, and has in his/her possession or control "books, papers, documents, or tangible things" which are relevant to the litigation. O.C.G.A. d 24-10-22(a). In practice, compliance with a subpoena for production of documentary evidence (usually referred to as subpoena duces tecum) frequently is accomplished by a production of the records rather than appearance of the witness.
In addition to the foregoing method of obtaining documents, any deposition witness may be compelled by subpoena to bring "relevant" documents in his/her possession to the deposition. See O.C.G.A. d 9-11-45(a)(1). However, deposition subpoena practice differs from trial subpoena practice in two particulars. First, a witness may be subpoenaed to a trial or hearing anywhere in the state. For depositions, appearance may be compelled only in the county where the witness resides, is employed, regularly transacts business, is served with the subpoena, or within thirty miles of the county seat of one of those counties. O.C.G.A. d 9-11-45(b)(1), (2), (3). Second, the procedure for seeking relief from compulsory production of documents is slightly different in the case of deposition subpoenas. The witness need only "object" to the production within ten days of the date for compliance. O.C.G.A. d 9-11-45(a)(2). The burden is then shifted to the requesting party to seek a court order compelling production. Id.
C. Organization Of The Medical Record
Medical records received from providers usually are unorganized and in various degrees of disarray. It is important to organize the medical record in topical categories which are easily recognizable to persons who will be using the record, particularly experts. A copy of the medical record should be numbered and tabbed, using either an index or topical tabs. Examples of the various components of a medical record are illustrated in one of the attachments below (with special thanks to Mary Ellen Griffin for composing the same).
II. OTHER DOCUMENTS MAINTAINED BY THE DEFENDANT(S)
Institutional defendants in medical malpractice cases usually maintain various categories of documents which may be helpful in the prosecution of the case. An obvious example is the policy and procedure manual maintained by a hospital. This repository of documents is required by any hospital seeking accreditation by the JCAHO. In any case in which documents in the policy and procedure manuals may be relevant, a copy of the index to the manuals should be requested and reviewed. Because of the voluminous nature of policy and procedure manuals, the better practice is to schedule a production of the original documents so that the materials actually copied can be marked and duplicated subsequently.
Depending upon the nature of the case, it may be prudent to seek discovery of any educational materials used by the defendant in the training of its employees. One particular species of document in this general category is "in-service" material. This is educational material specifically prepared by the defendant for use in the training of its employees in-house.
Other documents maintained by the defendant which may be relevant are: computer printouts, patient logs, back-up computer tapes, and statistical information including productivity and billing statistics.
III. MATERIALS FROM PRIVATE MEDICAL ORGANIZATIONS
This is a fertile field of discovery which is often overlooked. There is an amazing amount of information published by the American Medical Association, as well as virtually every specialty group recognized by the AMA. Prime examples are the ACOG technical bulletins, published by the American College of Obstetricians and Gynecologists; Standards for the Nursing Care of Women and Newborns, published by the Association of Women's Health, Obstetric and Neonatal Nurses (formerly NAACOG); Guidelines for Perinatal Care, jointly published by the American Academy of Pediatrics and ACOG; Standards for the Practice of Nurse-Midwifery, published by the American College of Nurse-Midwives; Standards of Practice for the Primary Healthcare Nurse Provider, published by the American Nurses' Association; Scope of Practice of the Primary Healthcare Nurse Provider, also published by the ANA; Clinical Policy for Management of Adult Patients Presenting with a Chief Complaint of Chest Pain, and no History of Trauma, published by the American College of Emergency Physicians; Rapid Identification and Treatment of Patients With Acute Myocardial Infarction, published by the NIH National Heart, Lung, & Blood Institute. In prosecuting a medical malpractice case, assume that there are at least some healthcare standards applicable to the care in issue in your case, regardless of the specialty or type of care involved. Anyone practicing in this area should be aware of and consult the Official Directory of Healthcare Standards, which is published on an annual basis by ECRI.
IV. MATERIALS FROM GOVERNMENTAL ENTITIES
Various state and federal governmental entities maintain documents which may be helpful in the prosecution of a malpractice case. If the material constitutes a "public record," it is obtainable under state law pursuant to the Georgia Open Records Act, O.C.G.A. d 50-18-70, et seq. Public records are defined as "documents, papers, letters, maps, books, tapes, photographs, computer-based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency." O.C.G.A. d 50-18-70(a).
It has been held that records of county hospital authorities are subject to provisions of the Open Records Act. See Clayton County Hospital Authority v. Webb, 208 Ga. App. 91, 430 S.E. 2d 89 (1993).
Another important case with regard to the discovery of materials maintained by governmental entities is Apple Investment Properties, Inc. v. Watts, 220 Ga. App. 226, 469 S.E. 2d 356 (1996). The case was based upon allegations that the defendant nursing home negligently caused the death of a patient by allowing him to wander from the facility. During discovery, the plaintiff sought to obtain records of incidents and accidents involving other residents which the nursing home was required by law to make and keep in the residents files. Pursuant to O.C.G.A. d 9-11-34, Watts served a request for these records which were specifically required to be maintained by 290-5-35-.10(1) of the Rules of the Department of Human Resources. The defendant filed a motion for protective order alleging that the records were not relevant and that production would violate the confidentiality of other patients. The trial court denied the protective order and required production of the reports.
The Court of Appeals affirmed the trial court's decision, holding that the information sought was relevant and that the privacy rights of other residents could be protected adequately by the trial court using in camera reviews and fashioning orders which would limit the use of and dissemination of the records. Apple at 359.
V. MEDICAL LITERATURE/REFERENCES
Prior to the arrival of the Internet, the search for medical literature pertinent to a particular case involved trudging through Index Medicus or perusing a general medical text in search of citations to germane medical literature. Attorneys higher on the food chain usually had access to Medline, a computerized collection of abstracts of medical articles which have been published in leading medical journals.
The Internet has provided easy access to medical literature, not only through Medline, but through a multitude of web sites where there are huge collections of information regarding highly specialized topics. A few examples follow.
At www.askmedi.com, there is a compilation of all disciplinary actions taken by each state against physicians practicing within the state. A nominal fee is charged to search the record of any individual doctor. The AMA lists biographical information on virtually every member physician on www.ama-assn.org/. Specialty groups such as the American College of Obstetrics and Gynecology maintain extensive web sites. See www.acog.com. See also www.eyenet.org (American Academy of Ophthalmology), and www.asahq.org (American Association of Anesthesiologists). Medicine Net, at www.medicinenet.com, is an excellent site for pharmaceutical information. Also check out the Agency for Healthcare Policy and Research's site at www.ahcpr.gov.
VI. EXHIBITS
See attachments.
