Choosing Wise Words: Legal Implications of Medical Documentation
By Aaron Holt, JD, a former felony and chief prosecutor who served in the specialized Family Criminal Law Division of the Houston District Attorney's Office
December 8, 2015
Conviction rates for Intimate Partner Violence criminal cases are directly correlated to the existence and adequacy of corroborating medical documentation. A recent Department of Justice Study found that certain types of evidence commonly found in medical records doubled the likelihood that the abuser would subsequently be convicted of the crime. All too often, this vital and legally relevant evidence contained in medical records is ruled inadmissible in court. A study by the National Institute of Justice analyzed over eight hundred statements from various medical records and found that approximately 28, or 3.4%, were deemed independently admissible in court. These rulings have little to do with the content of the underlying information; rather, the wording, level of detail and legibility of the records themselves are at fault.
A sad paradox has developed between the medical and legal worlds, where frontline medical professionals have no reason to believe the manner in which they document injuries may be flawed, and the legal professionals rarely, if ever, communicate any deficiencies to them. Indeed, an admissibility ruling on a particular set of medical records in the criminal context typically comes years after the creation of these records. This temporal gap presents both logistical and practical communication problems which act as a barrier between these industries who, ironically enough, both share the common goal of keeping the victim safe and the lawful prosecution of the abuser. As a result, this cycle of documentation and corresponding legal challenge simply repeats itself without end.
The timeframe between treatment and trial presents additional problems to medical professionals. Simply recalling events years after the fact, coupled with the prospect of cross-examination is a daunting prospect to even the most seasoned in the industry. Further complicating matters is the fact many health care professionals may be asked to testify as an expert depending upon their experience, education and training.
Fortunately, a detailed medical record can serve a multitude of invaluable purposes at trial. It can act as a shield to be used during cross examination by health care professionals and victims of intimate partner violence. The more detail contained in the record, the less the health care professional will be asked or expected to independently recall. Similarly, independently corroborating a victim’s etiology of her injuries strikes at the heart of most criminal defense strategies. Because most legal challenges to the admissibility of medical records relate to the manner in which they were recorded, avoiding the most common avenues of attack may be accomplished immediately through recognition and education.
Holt recently published "Winning in Court: Maximizing Protection for the Victim through Prosecution" in Intimate Partner Violence, STM Publishing, 2014. He will speaking about the importance of written documentation to criminal and civil litigation involving intimate partner violence, and discussing pro-active strategies to improve medical documentation admissibility and oral testimony our "Forensic Trends in Health Care" conference being held on April 15-17 2016 at the Center City Campus.