The purpose of this article is to heighten your awareness of how words appearing in medical records may be construed in a court of law, and to help you avoid recording words whose unintended meanings may make your patient's personal injury case difficult to prove.

WHY EMERGENCY ROOM RECORDS ARE NOT THE BEST ACCOUNT OF HOW AN INJURY OCCURRED

In the first visit for medical treatment following a motor vehicle accident (MVA) injury, especially in the emergency room, the patient will probably not be in a good position to provide an accurate account of how the injury occurred or a good medical history. Nevertheless, what is recorded will be scrutinized for inconsistency with information gathered at other times. Any inconsistency found will raise questions about your patient's -or your - credibility.

Therefore, if the circumstances of the accident are recorded, it is best to avoid information which reaches beyond what you need for your immediate treatment and diagnosis. For example, detailed information which could later be proven wrong (such as your patient's estimate of the speed of the other vehicle) may hurt your patient's case. General information (such as the part of the vehicle impacted, if it relates to the type and location of injuries) should be adequate. Accounts of the exact circumstances of the crash are better left to other witnesses.

PRIOR HISTORY AND TOTAL EXTENT OF INJURY MAY NOT BE OBTAINABLE AT FIRST VISIT

If it appears that the patient's pain or shock from the recent MVA may make it difficult for the patient to provide a history of related medical conditions or even the full extent of his/her present pain, such questions may better be left open and elicited at a later time.

When asking about medical history possibly related to the injury, be sure your client understands that you asking about history which may be many years back and not just recent history. Recognizing variations in people's memories, it is probably best to leave the question open: "Let me know if you think of anything (else)."

Also, be sure your patient understands, for example, that you are inquiring about any prior injury or treatment to the same general area of the body, as opposed to whether he/she has suffered prior injury to the exact same body part.

NO BROKEN BONES DOES NOT MEAN NO INJURY

X-rays taken to rule out broken bones will not show the very real effects of trauma to soft tissue. However, an x-ray report finding "normal" or "unremarkable" results may be interpreted to mean there was no injury. Mentioning soft tissue damage identified by other means will help to avoid this misinterpretation. That is, it would be helpful if reports address what problem is there, even if the x-rays do not reveal problems which x-rays are designed to discover.

AVOIDING THE "SLIP AND FALL" SLIP

One example of how words take on a special meaning in a legal context is when a person suffers an injury after a fall. In a premises liability case (commonly known as a "slip and fall" case), the key issue is whether the person responsible for maintaining the property is liable for the injuries suffered in the fall. Detailing exactly how the person fell is critical to proving liability.

Emergency room records not consistent with the injured person's explanation of how he/she fell, could be fatal to your patient's claim. Medical professionals are understandably more interested in properly diagnosing and treating the injury. It is not surprising, then, that medical professionals may use the words "slip," "trip" and "fall" without intending to address the circumstances which brought about the fall.

However, in the legal context, the word "slip" implies the presence of a foreign substance (such as ice, spilled fluid or a piece of produce) on the surface where the injured person fell. This is very different from "trip" which implies an obstacle. Whereas, the word "fall" alone may suggest the fall occurred for idiopathic reasons not related to any outside object. One or two little words ("patient reported to ER with a slip and fall injury") may have a major impact on your patient's ability to prove the circumstances of his/her fall. One or two words may determine whether your patient receives just compensation for his or her injury.

Defense attorneys will go through the medical records with a fine tooth comb and characterize your statements to suit their version of the story. One word may shift the entire focus of the presentation of the facts.

Also, an inaccuracy of this type may be used to impeach your medical testimony.

THE CHALLENGE: KEEPING NON-MEDICAL EVIDENCE OUT OF MEDICAL RECORDS

The circumstances are challenging. The deck appears to be stacked against the injured person. The story given to the first medical provider, often in the ambulance or emergency room, may be affected by the injured person's duress or medicated state. The injured person may be unable to talk. Or, the patient may not be the best historian or in a position to know or recount exactly what happened. The person accompanying the injured person may "help" by trying to explain the accident and injury. Also, you may be pressed for time and not hear or understand all the patient states.

All these factors make medical records, especially those of the initial treatment after an injury, an unreliable source of evidence of how the injury occurred . Medical records are to document the history of symptoms, findings, diagnosis and treatment. Medical records should not be used as evidence of the circumstances of the injury except to the extent indicated by the injury itself. However, the full extent of the injury may not be evident on initial treatment.

Under these circumstances, the safest course is to make clear in the report your uncertainty about the exact circumstances or extent of the injury. This will prevent the defense counsel and the court from limiting the injury and its mechanism to those details set forth in the initial work up. By avoiding this, the fact finders can also be directed to subsequent medical records which may flesh out details not recorded in the throws of the emergency work up.

If you are the post emergency treating physician or consultant, it is important that, if possible, you obtain and review the patient's prior records before you see the patient. This way, you will be better informed and in a position to clarify with the patient all the symptoms which may relate to the accident.

We encourage our readers to share this article with emergency room staff.

This article was prepared by
Thomas N. Petersen and Robert L. Chapman