COMMON ERRORS & OVERSIGHTS—
HOSPITAL & MEDICAL RECORDS

When hospital and medical records are involved in litigation (and in particular in alcohol test cases), there are a number of common errors and oversights by trial attorneys that I frequently encounter in consulting cases. Being aware of them is the first step toward avoiding them in your cases.

1. Marking up and jotting notes on the originals or on original copies sent to you from hospitals or doctors. (Be sure that your entire staff knows that this is always to be avoided).
   
   

   a. Always keep the originals of documents as received "clean"
   
   b. Notes & marks can often disclose your "thinking" to others (at the very time when you don't want them to)
   
   

   c. Notes & marks are carried over to later copies when made, and it becomes even harder to tell when and who made them
   
   d. Those marks and notes are there when you wish to use the documents on depositions or at trial—poor practice
   
   

   e. They WILL confuse you and others ("Who made this mark? When? What does this mean?"—at times no one knows for sure until original documents are again obtained)
   
   f. Marks and notes can cover or obliterate or change material already on there (which needs to be seen clearly and correctly). [Use a special copy just to mark up, or better still, always use stickies for any marks or notes—they can be removed entirely.]
   
   

2. Reading a hospital or medical report for what you believe is important or relevant, and more or less ignoring the rest of it. (As an older and wiser attorney once put it to me, "Ed—look at everything. There's killers in them weeds!")
   
   
3. Failing to identify medical terms and references that you don't understand in a report—and getting them "translated" for you. [You don't have to necessarily wade through the whole report yourself, finding the definition of each word, but you should get someone who knows the facts of your case, and who knows the matters at issue, to read and make sense of the material—to proof it for you.]
   
   
4. Failing to be sure that you have the whole hospital report, including nurse's notes, consultation notes and reports, laboratory and medication orders and results—everything! [Some attorneys get the Admission Notes and Discharge Summary (which is usually in more or less plain English), and they assume they have the "meat". Wrong! Get it all and review it all (or have it done for you). Things that never make it into those summary documents can pop up to "kill" you at trial—especially in alcohol cases.]
   
   
5. Overlooking marks and symbols that seem unimportant. If you don't know what something means, find out. Different hospitals use different "shorthand" than others; some areas of the country differ from others in the medical notations and symbols used (despite the fact that many are standard and commonly used). Attorneys sometimes overlook direct references to alcohol and sobriety in the record because the references don't use those terms, and don't appear where they expect such a note to be made.
   
   
6. Failing to track all of the injuries and conditions treated (especially in the first 24 hours in alcohol test cases), and overlooking circumstances that could affect the condition of the sample which was collected and tested for alcohol.
   
   
7. Failing to determine if the chain-of-custody of the blood sample(s) collected and tested can be established and verified—determining if this is reflected in the record.
   
   
8. Failing to determine who ordered the samples collected and tested, and for what purpose (medical or legal).
   
   
9. Failing to examine the rest of the laboratory test results for their significance, and for consistency and inconsistency (in re alcohol result reported).
   
   
10. Failing to determine how the alcohol tests were performed in the hospital or clinical laboratory, and how the reported clinical results relate to forensic laboratory determinations.
    
    
11. Failing to determine who performed the alcohol tests, and the actual credentials and experience of that person.
    
    
12. Failing to obtain and review the records on the purchase, use, maintenance and daily or other calibration procedures used with respect to the alcohol test equipment in your hospital, clinic or forensic laboratory.

In some cases, an early and careful review of the hospital and medical records can make or break the alcohol test issues—FOR EITHER SIDE! Never let this investigation by you "slide" until late in the case. The outcome of some cases will depend on whether you do this job right!