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Deposing the Hospital's Librarian and Chief of Staff
“Huh?' you may ask. 'I've never done that, and besides, all you have to do is get the medical records and you don't need to take anybody's deposition.' This is, of course true, where the medical records are authentic and you have no reservations about their authenticity. What happens, though, where there is no record; where the record is altered; or in cases where it just doesn't ring true? As part of discovery, the attorney would want to determine the origin of the medical record and seek explanations for whatever spoliation has occurred, whether physical (destruction or absence of the record) or content spoliation (an inaccurate account of the medical care). The place to begin, then, is with those responsible for enforcing medical record rules and regulations: the Chief of Staff and the hospital medical record librarian. One could also take the deposition of the department chief.
Consider this case: Mr. X underwent surgery and sustained injury during the procedure. The surgeon dictated the surgical note or operative report 3 ' months after the surgery ' after he knew the patient was unhappy. The plaintiff also requested some important pre-operative films but, guess what? They were missing. This information would greatly help the plaintiff prove his case, so how should the attorney treat the loss? Through a request for production of documents, the attorney can obtain the hospital bylaws with respect to medical records and the applicable rules and regulations within the department, if any. If the records are missing or otherwise inadequate, review of the hospital's own rules with respect to record-keeping and retention will undoubtedly reveal that those rules have been violated. At the hospital in which Mr. X underwent surgery, the bylaws relevant to his records were, to quote: '#6. The attending physician shall be responsible for the preparation of a complete medical record for each patient. This record shall include ' operative report [and] pathological findings ' No medical record shall be filed until it is complete, except on order of the Medical Records Committee.' With respect to 'Maintenance of Records,' Bylaw #16 stated in pertinent part:
' ' Records shall be completed, whenever possible, upon discharge of the patient from the Hospital. The physician shall be notified by the Chairman of the Medical Records Committee if records are incomplete.
- Failure to complete the records within 14 days after discharge of the patient form the hospital shall result in automatic suspension.
- The suspension shall end with the proper completion of the record.
- Delinquencies in records shall be reviewed by the Medical Records Committee and may be referred to the Council (the hospital's governing body).
- The medical record is the property of the hospital ' and may be removed only in accordance with a court order, a subpoena, or state statute.'
Based on these internal regulations, the following are the questions that should be asked at the depositions.
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