Receiving a subpoena requesting medical records or to give deposition or trial testimony, is the last thing on any health care professionals wish list. Carefully assembling medical records or preparing for testimony however, is extremely important. As with most difficult tasks, effective preparation and practice, can be the key to success.

Responding to Medical Record, Document/Discovery Requests

First, let’s look at how to respond to medical record requests.  Always remember that if the resident has expired, record requests can only be authorized by the Executor of the resident’s estate. There must be an official court document that appoints the requesting (or authorizing) person Executor of the estate. If the request is by a subpoena, you will want to make sure it is signed by a judge. While you should never ignore a subpoena, note that most states do not require that you produce the records any earlier than the due date stated on the subpoena. This allows the resident and/or legal counsel to stop or limit the subpoena if there is an objection to the provision of the records.  Keep close track of the date specified as the due date for the records as there can be penalties if they are late. Also, while the information requested as part of a document/discovery request may be fairly broad, close consultation with internal and, as relevant, external counsel on application of the attorney-client privilege, related work product, and appropriate safeguards of other legally protected information is essential as you respond to requests.

As with all aspects of healthcare, releasing records in response to a subpoena must comply with the HIPPA privacy regulations. You should only provide the documents that are specifically requested in the subpoena.  Some records are specially protected, and should not be provided until you have consulted with your attorney. These would include genetic information, mental health, psychiatric/psychotherapy records, records of substance abuse treatment, or records that contain HIV/AIDS related information. Remember that you cannot even mention to the party requesting the records that this specially protected information exists, as this could be a HIPAA violation.

It is highly recommended that the copies of the records be reviewed by a second person in the facility before they are provided. When records are run through the copier in large volumes, pages can be missed or misaligned, accidentally misfiled records of other residents may be present, or internal facility documents that are not part of the medical record might be misplaced in the chart. The records that you provide become part of a legal proceeding, and will be used to represent the care provided to the resident. Make sure that what you provide does not poorly represent the facility because it was inadequately copied and assembled.

Preparing for Deposition or Trial Testimony

When it comes to preparing for a deposition or trial, you should not review any records or materials until checking with the attorney that will be representing you. The attorney is responsible for determining what, if any records, policies, or written communications they will want you to review in order to answer the questions presented. Usually, the attorney will prefer that you focus on the records that include your own documentation or charting entries for the time period in question. Sometimes, as in the case of handwritten records where initials and signatures may be difficult to decipher, the attorney may ask you to help identify the entries for which you were responsible.

When reviewing the records, keep in mind that not all supportive documentation is found in the narrative notes. Some questions that may arise about the care reflected in the progress note, might be answered or clarified in a supplemental assessment or flow chart.  Your representing attorney will appreciate your knowledge of all the places to look for the needed information, and how to interpret the medical abbreviations, initials, and symbols that may be used.

An important rule to remember is, if you do not recall an event or do not know the answer to a question, then say so. Testimony is not intended to be a test of your memory, but rather an opportunity to learn all of the facts in a case. You should never answer a question based on a guess or an assumption, but rather on the facts as you know them to be true. Also, if you do not understand the question presented, let the attorney know. You do not want to answer a question if you are not sure what is being asked.

A few other helpful tips include:

      • Always wait until the attorney is completely done asking their question before you begin to answer, and then pause before you begin. This will allow you to make sure you have heard all of the information that is being asked, and will give you a moment to think about your answer.
      • Only answer the question that is asked. Do not add any additional information unless it is requested. Attorneys will often make a statement like “wouldn’t you agree that” or “isn’t it true that”.  If you do not agree, or if you know it is not true then do not be afraid to say “No, I would not agree with that because…” or “No, that is not true because…” and then offer your explanation.

By working with your representing attorney, asking them questions to help you prepare for your testimony, and remembering these tips, you can respond effectively to record requests and communicate professionally during a deposition or trial testimony.

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Blog by Janine Lehman, RN, RAC-CT, CLNC, Proactive Medical Review

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