For most health care providers, the intersection between law and medicine occurs most often in the area of medical reports. Although orthopedic surgeons are the most frequently involved in providing reports to attorneys, every provider will furnish medical-legal reports at one time or another. The most common type of lawsuit in which medical reports are requested are personal injury suits; however, other types of suits, from mental health proceedings to child custody disputes, will often require such reports.
Requests for Reports
Health care providers usually receive requests for reports from the attorney for one of the parties in a lawsuit. The form of the request is universal: a cover letter enclosing an authorization for release of medical information signed by the patient. In many states, it is customary for the authorization to be in the form of an “Assignment and Authorization.” Unless accompanied by such an authorization, the health care provider may not provide any information to the attorney.
NOTE: Health care providers also receive such requests directly from insurance companies in connection with reimbursement claims. The following discussion is equally applicable to such situations.
Progress Notes v. Reports
“Medical-legal report” is an ambiguous term. The requesting attorney usually specifically requests an evaluation of the patient. Sometimes a provider can satisfy this request by transmitting a photocopy of the provider’s office records or progress notes. It is seldom, however, that the requested information can be secured merely from the often cryptic notes of the patient’s office visits.
Fees for Medical Reports
If the requesting lawyer specifically requests a copy of existing records, then only a reasonable copy charge is appropriate. If the lawyer requests a written opinion that will require independent work and analysis by the provider, the provider may charge a reasonable free for the preparation and transmittal of the original and supplemental opinion letters to the lawyer. The provider should remember, however, that the patient, not the lawyer, ultimately pays these expenses.
Contents of Medical Reports
To be of value to the attorney (and thus the patient), the medical report should contain the following:
• The patient’s relevant medical history;
• A description of the onset of the patient’s condition;
• A description of objective findings on the first visit of the patient in connection with the present condition, and a narrative summary of subsequent objective findings;
• A recitation of clinical and diagnostic tests made and their results;
• A diagnosis;
• A prognosis;
• An opinion regarding the need for future medical services.
In addition, the provider should answer any specific questions asked by the attorney in the attorney’s cover letter, such as the causal relationship between the patient’s accident and the condition being treated; the degree of the patient’s disability, and the delineation of any pre-existing condition.
Some conditions are obviously traumatic in origin and the report need not specifically relate the accident to the condition.
A patient suffers facial lacerations after striking and breaking a windshield during a car accident. The attending physician need not address whether the lacerations were directly or indirectly caused by the accident — it is self-evident. However, a soft-tissue injury such as cervical strain often requires specific relation to the traumatic event.
Unfortunately, health care providers and attorneys have different vocabularies. Providers are usually reluctant to give unqualified opinions as to relationships between cause and effect; such statements offend their sense of scientific methodology. Lawyers, on the other hand, tend to use direct language in establishing causation: does the injury relate to the accident, or doesn’t it?
To further complicate matters, the law requires certain “magic words” in connection with opinion testimony. In most states, physicians must give their opinion based upon “a reasonable degree of medical certainty.” (In some states, “reasonable probability”).
Because this is such a crucial matter in most cases, health care providers should devote considerable thought to their opinions before committing them to paper. A phone call to the requesting attorney is often helpful in understanding the issues.
Further explanation in a medical report is often necessary to translate medical data about patient disability into meaningful information for the attorney. An orthopedic surgeon may describe a loss of motion in a joint in terms of range of movement: “patient moves her neck through a range of 35% rotation to the right.” Or: “patient has a 20% disability of the knee.” Such a percentage has little meaning to the legal issue of disability.
The important issue is what that loss of function means to the life of the patient. Would a loss of a percentage of visual field in an eye restrict the patient from driving? Would a loss of 20% function of the knee prevent the performance of ordinary daily chores? Relating the disability to a specific loss of function portrays the injury in meaningful terms and will often help resolve the case.
Frequently lawsuits involve cases where the patient-claimant has suffered an injury superimposed on a pre-existing condition or injury. These types of cases provide some of the thorniest problems for health care providers. For instance, many claims involve patients who have degenerative arthritic changes in their spine and then suffer an auto accident which exacerbates the condition. A medical report which simply details the patient’s present signs and symptoms is of little use to the attorney or the patient and will inevitably require further involvement by the provider. The provider can save all parties time by answering the following questions in the report:
• Was the previous or underlying condition painful or disabling, and to what extent?
• If there was a previous injury, was there full recovery, or are its effects still present?
• Was the previous condition or injury static, progressive, or regressive?
• Was the new trauma a “competent producing cause” of the patient’s present symptomatology and/or condition?
• Was the new injury a precipitating factor in converting a functional condition into a non-functional condition?
Health care providers should be extremely careful to exercise restraint in drafting a medical-legal report. The report should be strictly factual, without any editorializing or comment of any sort. Under no circumstances should the provider become an advocate, either for or against the patient. In addition to losing its value as a report, such extraneous matter can reflect upon the professionalism of the provider and even, in rare circumstances, subject the provider to liability.
Specifically, the medical report should not comment upon the patient’s economic needs, educational level, family needs, or any personal matter unless clearly related to the medical condition or treatment.