Effective Use of Effective Use of Medical Records in Medical Records in Administrative Administrative HearingsHearings

Presentation RoadmapPresentation Roadmap

Understanding the Medical Understanding the Medical RecordsRecords

Exhibit OrganizationExhibit Organization Hearing StrategyHearing Strategy

Understanding the Understanding the RecordsRecords

What is a Medical Record?What is a Medical Record? The portion of a client’s health record that is made The portion of a client’s health record that is made

by physicians and is a written transcribed history of by physicians and is a written transcribed history of various illnesses or injuries requiring medical care; various illnesses or injuries requiring medical care;

A chronological written account of a patient’s A chronological written account of a patient’s examination and treatment that includes:examination and treatment that includes: The patient’s medical history and complaintsThe patient’s medical history and complaints The physician’s findings, the results of diagnostic tests and The physician’s findings, the results of diagnostic tests and

proceduresprocedures The results of therapeutic proceduresThe results of therapeutic procedures MedicationsMedications

What else?What else?

Mental health records:Mental health records: PsychiatristPsychiatrist Psychologist, Licensed Professional Psychologist, Licensed Professional

Counselor (L.P.C.), Licensed Social Worker, Counselor (L.P.C.), Licensed Social Worker, etc.etc.

Billing and PaymentBilling and Payment

Medicare/Medicaid recordsMedicare/Medicaid records Insurance claimsInsurance claims Self-pay recordsSelf-pay records

Example 1: Example 1: Dr. Telephone OrdersDr. Telephone Orders

Example 2:Example 2:Nursing NotesNursing Notes

Medical Record?Medical Record?OIG Medicaid Utilization ReviewOIG Medicaid Utilization Review

Understanding the Understanding the Condition/TreatmentsCondition/Treatments

1.1. What is this condition?What is this condition?2.2. What causes it?What causes it?3.3. What are the symptoms?What are the symptoms?4.4. How is it treated?How is it treated?5.5. Similar diagnoses?Similar diagnoses?6.6. Comorbidities?Comorbidities?7.7. ICD-9-CM Codes/ ICD-10-CM Codes ICD-9-CM Codes/ ICD-10-CM Codes

www.icd9cm.chrisendres.comwww.icd9cm.chrisendres.com

Internet ResourcesInternet Resources

ResultsResults Plantar Plantar fasciitisfasciitis - - WikipediaWikipedia, the free encyclopedia, the free encyclopedia Plantar fasciitisPlantar fasciitis is a painful inflammatory condition of the foot caused by excessive wear to is a painful inflammatory condition of the foot caused by excessive wear to

the the plantar fasciaplantar fascia that supports the arch or by biomechanical that supports the arch or by biomechanical ......en.wikipedia.org/wiki/en.wikipedia.org/wiki/PlantarPlantar__fasciitisfasciitis - 58k - - 58k - CachedCached - - Similar pagesSimilar pages

Plantar Plantar fasciitisfasciitis - - MayoClinic.comMayoClinic.com Plantar fasciitisPlantar fasciitis — Comprehensive overview covers causes, prevention, self-care of this — Comprehensive overview covers causes, prevention, self-care of this

common type of heel pain.common type of heel pain.www.mayoclinic.com/health/www.mayoclinic.com/health/plantarplantar--fasciitisfasciitis/DS00508 - 26k - /DS00508 - 26k - CachedCached - - Similar pagesSimilar pages

Your Your OrthopaedicOrthopaedic Connection: Connection: Plantar Plantar FasciitisFasciitis When your first few steps out of bed in the morning cause severe pain in the heel of your foot, When your first few steps out of bed in the morning cause severe pain in the heel of your foot,

you may have you may have plantar fasciitisplantar fasciitis (fashee-EYE-tiss). (fashee-EYE-tiss). ......orthoinfo.aaos.org/topic.cfm?topic=A00149 - 15k - orthoinfo.aaos.org/topic.cfm?topic=A00149 - 15k - CachedCached - - Similar pagesSimilar pages

plantar plantar fasciitisfasciitis: Information from : Information from Answers.comAnswers.com plantar fasciitisplantar fasciitis Inflammation of the Inflammation of the plantar fasciaplantar fascia (the thick band of tissue along the sole of (the thick band of tissue along the sole of

the foot) at its attachment point to the heel bone.the foot) at its attachment point to the heel bone.www.answers.com/topic/www.answers.com/topic/plantarplantar--fasciitisfasciitis - 84k - - 84k - CachedCached - - Similar pagesSimilar pages

Plantar Plantar FasciitisFasciitis - Information About - Information About Plantar Plantar FasciitisFasciitis Plantar fasciitisPlantar fasciitis is a condition that causes heel and arch pain is a condition that causes heel and arch pain

Exhibit PresentationExhibit Presentation

Focus on the Right RecordsFocus on the Right Records Attack the StackAttack the Stack More Research RequiredMore Research Required Looks MatterLooks Matter

Focus QuestionsFocus Questions

What elements do I need What elements do I need to prove in to prove in this case?this case?

What information could What information could hurt my case?hurt my case?

Attack the StackAttack the Stack

Remember what you are trying to proveRemember what you are trying to prove

and… and…

Be RUTHLESSBe RUTHLESS

This means…This means…

Don’t dally! Don’t dally!

andand

Don’t be Don’t be nosynosy!!

Organizing the StackOrganizing the Stack

When you attacked the stack*, you might When you attacked the stack*, you might have:have:

Highlighted important textHighlighted important text Tabbed key documentsTabbed key documents Taken notesTaken notes Organized the stack into foldersOrganized the stack into folders

**YOU’VE KILLED 2 BIRDS WITH 1 YOU’VE KILLED 2 BIRDS WITH 1 STONE. THESE ARE YOUR EXHIBITS.STONE. THESE ARE YOUR EXHIBITS.

Problem Records:Problem Records:More Research RequiredMore Research Required

IllegibleIllegible Unintelligible/ indecipherable Unintelligible/ indecipherable Expert report or other record does not Expert report or other record does not

say ‘magic words’ say ‘magic words’ Records that contradict legal theoryRecords that contradict legal theory

InconsistenciesInconsistencies Opposing expert opinionsOpposing expert opinions

What to include?What to include?

1.1. Records that tend to prove the elements of Records that tend to prove the elements of the case.the case.

2.2. Records that might hurt your case, but need Records that might hurt your case, but need to be explained away.to be explained away.

3.3. That’s it. Pounds of paper will not make your That’s it. Pounds of paper will not make your case any better. case any better.

Comments from the Comments from the BenchBench

““2 inch rule” vs. Presenting 2 inch rule” vs. Presenting incomplete record (game incomplete record (game playing)playing)

Misstating the information in the Misstating the information in the records (ethical concerns)records (ethical concerns)

ExamplesExamples

Appearances CountAppearances Count

Please, please, could you tab the Please, please, could you tab the records? records? And, maybe you could highlight the good parts. And, maybe you could highlight the good parts. Page Page numbers are nice, too. numbers are nice, too. A list of the many doctors, their specialties, and relation to the case could be really A list of the many doctors, their specialties, and relation to the case could be really helpful. helpful. Thank you!!Thank you!!

Page numbers required.Page numbers required. Redact confidential PERSONAL HEALTH Redact confidential PERSONAL HEALTH

INFORMATION.INFORMATION. If many names involved, make a list If many names involved, make a list

witnesses and relation to the case.witnesses and relation to the case. Have an exhibit list.Have an exhibit list. Tab the exhibits/ use a binder/ use dividersTab the exhibits/ use a binder/ use dividers

Evidentiary ConcernsEvidentiary Concerns

RelevanceRelevance Mental Health RecordsMental Health Records Rule of Optional CompletenessRule of Optional Completeness Hearsay ExceptionsHearsay Exceptions SummariesSummaries

RelevanceRelevance

RULE 401. DEFINITION OF "RELEVANT EVIDENCE"RULE 401. DEFINITION OF "RELEVANT EVIDENCE""Relevant evidence" means evidence having any tendency to "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the make the existence of any fact that is of consequence to the determination of the action determination of the action more probable or less probablemore probable or less probable than than it would be without the evidence.it would be without the evidence.

RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLEIRRELEVANT EVIDENCE INADMISSIBLEAll relevant evidence is admissible, except as otherwise provided All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. prescribed pursuant to statutory authority. Evidence which is not Evidence which is not relevant is inadmissible.relevant is inadmissible.

RULE 510 RULE 510 CCONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASESONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES

Communication between a patient and a professional is Communication between a patient and a professional is confidentialconfidential and shall not be disclosed in civil case and shall not be disclosed in civil case

UnlessUnless:: License revocation, medical malpracticeLicense revocation, medical malpractice Waiver or claim for mental/emotional health servicesWaiver or claim for mental/emotional health services Mental condition relevant to claim or defenseMental condition relevant to claim or defense Abuse/neglect of Nursing Facility residentsAbuse/neglect of Nursing Facility residents

This rule only governs disclosures of patient-professional This rule only governs disclosures of patient-professional communications communications in judicial or administrative proceedingsin judicial or administrative proceedings. Whether . Whether a professional may or must disclose such communications in a professional may or must disclose such communications in other circumstances is governed by Tex. Health & Safety Code other circumstances is governed by Tex. Health & Safety Code §611.001-611.008.§611.001-611.008.

Rule of Optional Completeness Rule of Optional Completeness (TRE 107)(TRE 107)

When part of an actWhen part of an act, declaration, conversation, , declaration, conversation, writing writing or recorded statement is given in evidence by one or recorded statement is given in evidence by one party, party, the whole on the same subject may be inquired the whole on the same subject may be inquired into by the otherinto by the other, and any other act, declaration, writing , and any other act, declaration, writing or recorded statement which is necessary to make it or recorded statement which is necessary to make it fully understood or to explain the same may also be fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters given in evidence, as when a letter is read, all letters on the same subject between the same parties may be on the same subject between the same parties may be given. "Writing or recorded statement" includes given. "Writing or recorded statement" includes depositionsdepositions..

Patel v. State, Patel v. State, 856 S.W.2d 486856 S.W.2d 486    (Tex. App. - Houston [1st Dist.] 1993, pet. (Tex. App. - Houston [1st Dist.] 1993, pet. ref'dref'd

)).. ““The rule of optional completeness -- which permits a The rule of optional completeness -- which permits a party to introduce the entire writing after the other party party to introduce the entire writing after the other party has introduced only part of it -- has introduced only part of it -- is meant to guard is meant to guard against the confusion, distortion, or false against the confusion, distortion, or false impression that can arise from the introduction of impression that can arise from the introduction of part of [**9]  a writing out of contextpart of [**9]  a writing out of context. . Livingston v. StateLivingston v. State, 739 S.W.2d 311, 331 (Tex.Crim.App.1987), 739 S.W.2d 311, 331 (Tex.Crim.App.1987); ; Tex.R.Crim.EvidTex.R.Crim.Evid. 107. 107. . 22 The purpose of the rule is to The purpose of the rule is to "reduce the possibility of the fact finder receiving a "reduce the possibility of the fact finder receiving a false impression from hearing the evidence of only part false impression from hearing the evidence of only part of an act." of an act." KinnamonKinnamon v. State v. State, 791 S.W.2d 84, 101 (Tex.Crim.App.1990), 791 S.W.2d 84, 101 (Tex.Crim.App.1990).”.”

Rule 803:Rule 803:Hearsay ExceptionsHearsay Exceptions

Statements for Purposes of Medical Diagnosis or TreatmentStatements for Purposes of Medical Diagnosis or Treatment.. Statements made for purposes of medical diagnosis or treatment Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. to diagnosis or treatment.

Learned TreatisesLearned Treatises.. To the extent called to the attention of an To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. expert testimony or by judicial notice. If admitted, the statements If admitted, the statements may be read into evidence but may not be received as may be read into evidence but may not be received as exhibitsexhibits. .

Learned TreatiseLearned TreatiseExxon Corp. v. Makofski, 116 S.W.3d 176, 188 (Tex. App.--Exxon Corp. v. Makofski, 116 S.W.3d 176, 188 (Tex. App.--Houston [14th Dist.] 2003, pet. denied)Houston [14th Dist.] 2003, pet. denied)

““UnfortunatelyUnfortunately, almost none of the relevant , almost none of the relevant epidemiological studies appear in the trial court epidemiological studies appear in the trial court record, though several were marked for record, though several were marked for identification and discussed at length during identification and discussed at length during the trial. As the trial. As learned treatises,learned treatises, excerptsexcerpts from from these studies could be read to jurors, but these studies could be read to jurors, but none were admitted as exhibits for jurors' none were admitted as exhibits for jurors' independent reviewindependent review. But while the rules of . But while the rules of evidence withhold learned treatises from jurors, evidence withhold learned treatises from jurors, that does not mean they should be withheld that does not mean they should be withheld entirely from the record.”entirely from the record.”

Rule 1006: SummariesRule 1006: Summaries

The contents of voluminous writings, The contents of voluminous writings, recordings, or photographs, otherwise recordings, or photographs, otherwise admissible, which cannot conveniently be admissible, which cannot conveniently be examined in court may be presented in the examined in court may be presented in the form of a form of a chart, summary, or calculationchart, summary, or calculation. The . The originals, or duplicates, shall be made available originals, or duplicates, shall be made available for examination or copying, or both, by other for examination or copying, or both, by other parties at a reasonable time and place. The parties at a reasonable time and place. The court may order that they be produced in court.court may order that they be produced in court.

In re B.B.In re B.B., No. 05-98-02042-CV, COURT OF APPEALS OF , No. 05-98-02042-CV, COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS, 1999 Tex. App. LEXIS TEXAS, FIFTH DISTRICT, DALLAS, 1999 Tex. App. LEXIS

9353, December 17, 1999, Opinion Filed (Unpublished)9353, December 17, 1999, Opinion Filed (Unpublished) There is no There is no [*14][*14]  dispute either that the underlying   dispute either that the underlying

medical recordsmedical records, constituting 119 pages of the , constituting 119 pages of the reporter's record, are voluminous or that Exhibit No. 3 reporter's record, are voluminous or that Exhibit No. 3 is a summary of those records. Furthermore, the is a summary of those records. Furthermore, the underlying medical records were admitted without underlying medical records were admitted without objection. Thus, we conclude the State laid a proper objection. Thus, we conclude the State laid a proper predicate for admission of Exhibit No. 3, and the trial predicate for admission of Exhibit No. 3, and the trial court did not abuse its discretion in admitting it. court did not abuse its discretion in admitting it. See See State v. Buckner State v. Buckner ConstrConstr. Co.. Co., 704 S.W.2d 837, 842-43, 704 S.W.2d 837, 842-43 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.); (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.); Moore v. MooreMoore v. Moore, 430 S.W.2d 247, 251-52, 430 S.W.2d 247, 251-52 (Tex. Civ. (Tex. Civ. App.-Dallas 1968, writ ref'd n.r.e.). We overrule App.-Dallas 1968, writ ref'd n.r.e.). We overrule Topkins's second issue.Topkins's second issue.

Other Summary CasesOther Summary Cases

Moore v. MooreMoore v. Moore, 430 S.W.2d 247, 251-52 , 430 S.W.2d 247, 251-52 Summary of microfilmed checks with Summary of microfilmed checks with accompanying microfilm. accompanying microfilm.

State v. Buckner Constr. Co.State v. Buckner Constr. Co., 704 , 704 S.W.2d 837, 842-43 Summary of checks S.W.2d 837, 842-43 Summary of checks and invoices along with boxes of the and invoices along with boxes of the checks.checks.

Hearing StrategyHearing Strategy

ExpertsExperts Fact witnessesFact witnesses Opening/Closing remarksOpening/Closing remarks Trial Briefs and Written Closing Trial Briefs and Written Closing

StatementsStatements

Dealing with Experts: Dealing with Experts: This is not a Jury TrialThis is not a Jury Trial

Hearing Officer/ ALJ/ Board already Hearing Officer/ ALJ/ Board already understands that the expert is being paid understands that the expert is being paid for their opinion. for their opinion.

Reputation matters: If this is a frequent-Reputation matters: If this is a frequent-flyer expert, there may be baggage.flyer expert, there may be baggage.

In some forums, testimony is not only In some forums, testimony is not only unnecessary but also unwanted.unnecessary but also unwanted.

Do you really need that Do you really need that expert testimony?expert testimony?

DWC rule (28 TAC 142.8):DWC rule (28 TAC 142.8):(a) In order to expedite the presentation of a (a) In order to expedite the presentation of a

case, the hearing officer may allow summary case, the hearing officer may allow summary procedures, including, but not limited to, the procedures, including, but not limited to, the use of: use of:

    (1) (1) sworn witness statementssworn witness statements; ;     (2) summaries of evidence; (2) summaries of evidence;     (3) (3) medical reportsmedical reports; ;     (4) agreements; and (4) agreements; and     (5) stipulations. (5) stipulations.

Applicable casesApplicable cases

Blankership v. MirickBlankership v. Mirick, 984 S.W. 2d 771 (Tex. , 984 S.W. 2d 771 (Tex. App.—Waco 1999, pet. denied). App.—Waco 1999, pet. denied). Non-expert testimony sufficient to support medical Non-expert testimony sufficient to support medical

causation because the testimony established, “…a causation because the testimony established, “…a sequence of events which provides a strong, sequence of events which provides a strong, logically traceable connection between the [collision] logically traceable connection between the [collision] and the condition.” and the condition.”

Morgan v. Compugraphci Corp.Morgan v. Compugraphci Corp., 674 S.W. 2d , 674 S.W. 2d 729 (Tex. 1984).729 (Tex. 1984). General human experience and common sense to General human experience and common sense to

establish medical causation.establish medical causation.

Fact witnessesFact witnesses

Ask yourself, do I really need this person Ask yourself, do I really need this person to testify? to testify?

Is it cumulative of the medical records?Is it cumulative of the medical records? Garza v. Minyards, No. 05-95-01668-CV COURT OF APPEALS OF TEXAS, Garza v. Minyards, No. 05-95-01668-CV COURT OF APPEALS OF TEXAS,

FIFTH DISTRICT, DALLAS (Unpublished)FIFTH DISTRICT, DALLAS (Unpublished) Garza had difficulty at trial understanding and answering questions about her Garza had difficulty at trial understanding and answering questions about her

injuries. She refused the assistance of an interpreter. Instead, she wished to injuries. She refused the assistance of an interpreter. Instead, she wished to read a portion of her medical records into evidence.read a portion of her medical records into evidence.

““The trial court denied the request because it concluded that reading the The trial court denied the request because it concluded that reading the records to the jury would be cumulative and inefficient, and would raise issues records to the jury would be cumulative and inefficient, and would raise issues of optional completeness.”of optional completeness.”

Necessary and HelpfulNecessary and Helpful

Nurse surveyors, investigators, complaint Nurse surveyors, investigators, complaint coordinators, etc.coordinators, etc.

Don’t have them read the medical Don’t have them read the medical regulation into the record—have them regulation into the record—have them summarize the regulation and its summarize the regulation and its meaning.meaning.

Do have them clarify the medical records Do have them clarify the medical records and how they relate to the regulations.and how they relate to the regulations.

Opening and Closing Opening and Closing

Use these as your opportunity to highlight specific Use these as your opportunity to highlight specific records of particular importance.records of particular importance.

In some cases, once the records are in evidence, a In some cases, once the records are in evidence, a combined opening and closing could be sufficient. combined opening and closing could be sufficient. Some considerations:Some considerations: Does this case revolve around the contents of the medical Does this case revolve around the contents of the medical

records?records? Would testimony be presented for sympathy/ empathy alone?Would testimony be presented for sympathy/ empathy alone? Could you do this via telephonic hearing procedures?Could you do this via telephonic hearing procedures? Could you do this via a Motion for Summary Disposition?Could you do this via a Motion for Summary Disposition?

Trial Briefs/ Written Trial Briefs/ Written ClosingClosing

Can be very helpful to the ALJ/ HO to Can be very helpful to the ALJ/ HO to clarify the dispute and the supporting clarify the dispute and the supporting documentation.documentation.

Can avoid reopening of the record and Can avoid reopening of the record and subsequent delay of decision.subsequent delay of decision.

Please remember…Please remember…

ALJ/HO are trained professionals who ALJ/HO are trained professionals who may be very familiar with the subject in may be very familiar with the subject in dispute. dispute.

They may even know more than you do They may even know more than you do about the subject!about the subject!

But, that doesn’t mean you get to dump But, that doesn’t mean you get to dump on them and hope they will figure it out. on them and hope they will figure it out.