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Legal Basis

Everyone who has read a detective novel or watched a courtroom drama has heard the term hearsay. Few concepts in law arise so often and yet are so inadequately understood as the concept of hearsay. Hearsay is important in the medical setting because the admissibility of the medical record into the court as evidence is governed by the hearsay rule. A basic understanding of this rule is very useful in appreciating the legal significance of medical record-keeping protocols.

A good statement of the rule is found in Texas Law of Evidence, Civil and Criminal, in its introduction to the volume of hearsay:

The principle embodied in the hearsay rule is simple, but it is often obscured by loose language, with the result that it is frequently misconceived as a rule which purports to exclude any reports by witness of statements made out of court. Our decisions are replete with the myriad of instances where contentions based upon the mistake have been overruled. The rule in truth is this evidence of a statement made out of court when such evidence is offered for the purpose of proving the truth of such previous statement, is inadmissible as hearsay.

The legal basis for this rule is that, if a statement made out of court is accepted as evidence, the person making that statement cannot be questioned (cross-examined) about the truthfulness of the statement. The court demands that the person who actually made the statement be brought into the courtroom, placed under oath, and asked to repeat the statement. This allows the attorneys the opportunity to cross-examine the witness to determine the truth of the statement. As applied to the medical record, this would mean that everyone who made an entry in the record would have to be called into the courtroom and asked which entries they made, why they made them, and what information they based these entries upon. It is obvious that this process would be extremely time-consuming; and, given the lengthy period involved in bringing a lawsuit to court, it would usually be impossible to find all of the personnel involved in making the medical record. Because of these practical difficulties, the courts have made certain exceptions to the hearsay rule. These exceptions allow documents to be admitted into evidence without the requirement that the persons who made the entries be available for cross-examination.

The medical record fits into one of these exceptions, called the business records exception. This exceptions, called the business records exception. This exception to the hearsay rule requires that the record meet four basic tests:

1. that the record be made in the regular course of the business

2. that the entry in the record be made by an employee or representative of that business who had personal knowledge of the act, event, or condition that is being recorded in the record

3. that the record be made at or near the time that the recorded act, event, or condition occurred, or reasonably soon thereafter

4. that the records be kept in a consistent manner, according to a set procedure

The latter procedure must be proved up by the testimony of the person making the entry or by the custodian of the records. The custodian does not need to have personal knowledge of the entries in question to testify about the record-keeping protocol. However, the custodian must be able to answer certain legal questions for the medical records to be admissible in the court. In the following example, the required set of questions is directed to a witness who is the custodian of records for Dr. George Jones:

* State your full name, residence, and occupation.

* Has Mary Doe treated or examined by Dr. George Jones?

* Has Dr. George Jones made or caused to be made any notes, records and/or reports of the examination and/or treatment of said patient?

* Were the entries on these notes, records, and/or reports made at the time, or shortly after the time, of the transaction recorded by these entries.

* Were these notes, records, and/or reports made or caused to be made by Dr. George Jones in the regular course of business as a doctor or physician?

* In the regular course of business at Dr. George Jones's facility, did each of the persons who signed the reports contained in the record either have personal knowledge of the entries shown on the report or obtain information to make the entry from sources who had such personal knowledge?

* Do you have such records as described above on Mary Doe?

* Were these records kept as described above?

* Please hand such records on Mary Doe to the notary public taking this deposition for photocopying and marking as exhibits to be attached to this deposition.

* Have you done as requested in the preceding question? If not, why not?

In addition to these basic questions, certain states also allow the charges for the medical care to be proved up by written questions:

* Are you familiar with the charges usually and customarily made for the medical services reflected in the bills furnished as a part of the requested written records?

* Please state the full amount of charges in the treatment of Mary Doe.

* Please state whether or not such charges are reasonable for like or similar services rendered in the vicinity in which they were incurred.

* Were the services performed, as reflected in the records, necessary for the proper treatment of the patient in question?

It is important to all parties in the malpractice lawsuit that the records be admissible in court. This is particularly true for the health care provider, for whom the medical record is the only evidence of the care that was rendered the patient. The patient has injuries to show the court; the physician or other health care provider has only the medical records to prove that the injuries were not due to negligence. For this reason, it is critical that the hospital's written guidelines for the keeping of medical records be followed at all times. A gross deviation from the medical records protocol could result in liability for an accidental injury. An important part of the risk management program involves ensuring that these record-keeping requirements are met.

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