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.

Deposition of Hospital Chief of Staff

• Does the hospital require that a surgeon create an operative note?
• Do you know the source of that requirement: hospital bylaw? Department rule/regulation? JCAHO requirements?
• What is the rule with respect to when the surgeon must create an operative note?
• Is this handwritten or dictated?
• So there are really two notes? A Brief Op note that is handwritten and then a formal dictated operative report that, after dictation, is typed?
• Have you reviewed the medical records in this case?
• Do you know if Dr. Smith created any operative report?
• If I tell you that the surgery was performed on March 3, would you agree that there should have been an operative note dictated soon thereafter?
• In your opinion, what would be the latest Dr. Smith could have dictated the surgical report and met the standard of care?
• Did Dr. Smith meet the hospital standard of care if he dictated the surgical report on May 30, 3 months later?
• In what way, within the hospital, would any official discover that there had been a late operative report?

(Produce exhibit: Bylaw #6)

• According to the bylaw, #6, is the physician responsible for the 'preparation of a complete medical record'?
• Further, no medical record 'shall be filed until it is complete, except on Order of the Medical Records Committee?
• Do you know whether such an order was entered with respect to Mr. Black's care and treatment?
• This bylaw includes the creation of the operative report?
• In your opinion, does the word 'complete' imply 'timely?'
• Can a medical record be complete without being timely?
• Is a medical record that is delayed 3 ' months a timely medical record?

(Produce exhibit: Bylaw #16)

• Under #16, under 'Maintenance of Records, (d),' the requirement states that 'records shall be completed, whenever possible, upon discharge form the hospital.' Will you agree that Mr. Black was discharged on March 8?
• So this operative report was not completed upon discharge form the hospital?
• Do you know the reason for this delay?
•  Is there any reason that would excuse a 3-month delay in the creation of the operative report?
• Is there any record that the Chairman of the Medical Records Committee notified the physician that his medical record with respect to the operative report in Mr. Black's case was incomplete?
• The hospital did not meet its own requirement under rule 16(d)(1)?
• Did the hospital then suspend Dr. Smith for his failure to complete the medical record within 14 days from the patient's discharge?
• Doesn't this bylaw include automatic suspension?
• Would you agree that Dr. Smith did not complete the medical record within 14 days after Mr. Black's discharge?
• So the hospital did not meet its own requirement #16(d)(2)?
• Did the hospital then suspend Dr. Smith until he completed the record on May 30?
• The hospital did not meet its own requirement #16(d)(3)?
• Isn't the next provision #16(f), which requires mandatory review by the Medical Records Committee?
• Did that review take place in Mr. Black's instance?
• The Hospital did not meet its own bylaw requirement #16(f)?
• Is an x-ray considered a medical record at your hospital?

(Produce exhibit: Defecogram report, Dr. Harold Jones.)

• Would you agree that the hospital Department of Radiology performed a defecogram on Mr. Black on January 20?
• Dr. Jones dictated a report on the same day?

(Produce exhibit: Response to plaintiff's Production Request of December 13, stating that there is no defecogram on file.)

Mr. Black's defecogram films of January 20 disappeared, is that correct?

• Bylaw #16(g) permits only three instances in which medical records may be removed form the hospital's custody and control, is that correct?
• Are you aware of any court order that would have permanently removed that x-ray from the hospital's medical record repository?
• Are you aware of any subpoena that would have permanently removed that x-ray from the hospital's medical record repository?
• Are you aware of any state statute that would have permanently removed that x-ray from the hospital's medical record repository?
• Even if the medical record were appropriately removed, it would be returned?
• And there should be some sort of record about where the films went?
• Does the hospital maintain a sign out log for films?
• Suppose a physician wants to review films at his office, outside the hospital. Are there provisions that would permit such temporary removal?
• In what manner would this be accomplished?
• But then the films would have to be returned at some point?
• Suppose a consultant outside the hospital wanted to review the actual films; is there a procedure by which that may be accomplished?
• And then the films would be signed out?
• And returned?
• Suppose either a treating doctor or some outside consultant signed out the films; is there some mechanism in place to request the return of the films?
• Are you aware if the hospital has any evidence that these films went to any treating physician or consultant outside the hospital?
• Would you agree that, at this time, there is no acceptable explanation for the disappearance of these films?
• Then the hospital did not meet its own bylaw requirement #16(g) in this respect?

Deposition of Medical Records Librarian

• Is an x-ray considered a medical record at your hospital?
• Isn't it true that the department should be able to retrieve x-rays?

(Produce exhibit – defecogram report, Dr. Harold Hawkins.)

• Would you agree that the hospital Department of Radiology performed a defecogram on Mr. Black on January 20?
• Did Dr. Jones dictate a report on the same day?

(Produce exhibit: — response to plaintiff's Production Request of 13 December stating that there is no defecogram in the records.)

• Did Mr. Black's defecogram films of January 20 disappear?

(Produce exhibit: Bylaw #16(g).)

• Bylaw #16(g) permits only three instances in which medical records may be removed form the hospital's custody and control, correct?
• Are you aware of any court order that would have permanently removed that x-ray from the hospital's medical record repository?
•  Are you aware of any subpoena that would have permanently removed that x-ray from the hospital's medical record repository?
• Are you aware of any state statute that would have permanently removed that x-ray from the hospital's medical record repository?
• Even if the medical record were appropriately removed, it would be returned?
• And there should be some sort of record about where the films went?
• Does the hospital maintain a sign-out log for films?
• Suppose a physician wants to review films at his office, outside the hospital ' are there provisions that would permit such temporary removal?
• In what manner would this be accomplished?
• But then the films would have to be returned at some point?
• Suppose a consultant outside the hospital wanted to review the actual films ' is there a procedure by which that may be accomplished?
• And then the films would be signed out?
• And returned?
• Suppose either a treating doctor or some outside consultant signed out the films ' is there some mechanism in place for requesting the return of the films?
• Are you aware if the hospital has any evidence that these films went to any treating physician or consultant outside the hospital?
• Would you agree that, at this time, there is no acceptable explanation for the disappearance of these films?
•  So, the hospital did not meet its own bylaw requirement #16(g) in this respect?

Conclusion

This sort of deposition requires the hospital to demonstrate that it met its own internal standards. Armed with admissions of improper procedure, courts will punish a defendant for failure to meet its own standard and the plaintiff's attorney may be able to achieve the court's grant of a presumption that what was in the records, or what should have been in the records, would have been unfavorable to the defendant.

One of any medical defendant's main cudgels is the 'white coat.' Juries, in general, regard medical personal with appropriate respect and are very hesitant to find them liable of wrongdoing unless it is possible show that the physician or other provider is not credible. The above technique, in which the plaintiff shows that the hospital and physician did not create or adequately safeguard truthful medical records, provides a powerful attack on that white coat imprimatur. Often, in this author's experience, this credibility attack will force a case to settle.

Elliott B. Oppenheim, MD/JD/LLM Health Law, is CEO and president of coMedco Inc.', a national medical-legal consultation corporation. Phone: 800-416-1192. E-mail: [email protected] ' Terra Firma Publishing Company.