How “Records Review” Works
How “Records Review” Works
By Sanjay Adhia, M.D.
“As an Expert Witness or Consultant, I find that valuable information in records can shift the focus of the case or the soundness of the opinions of other Experts.”
I cannot state strongly enough the importance of a thorough review of available records as an essential piece of rendering a forensic opinion. On the face of it, “Records Review” seems obvious. In practice, each Expert, in any discipline, will have their own methods and degree of thoroughness. Medical records and associated legal records (e.g. depositions) are not equally informative to different reviewers.
Delving into Documents: Beyond Bias in the Face-to-Face Interview
Although an interview is important, there is a risk of the examinee reporting biased symptoms. Bias can be the result of remembering circumstances inconsistently, misinformation, personal assumptions, or malingering. Bias in the examinee is inherent in forensic interviews. It is medico-legal fact-finding. It is not the same as a clinical examination by a treating doctor.
A records review is essential to provide information useful in the Forensic interview that confirms the examinee’s statements or allows the Psychiatrist to identify and explore deviations from the records.
If the examinee describes information consistent or inconsistent with records it is relevant and must be explored by the Forensic Psychiatrist
Trained Forensic Physician
As an Expert Witness or Consultant, a much more thorough and extensive record review is required. Attorneys will send a vast assortment of records, audio records and videos. Records can come via email, electronic storage like a CD or thumb drive, online file and occasionally paper records in boxes and binders. Many clinical psychiatrists will not have the patience or training of a forensic psychiatrist who often functions as a detective doctor. In addition to absorbing the data trove efficiently and thoroughly, the data must be synthesized with a medico-legal lens in order to form an opinion within medical certainty with a well written report.
Translation and Prioritizing
Estimating Time to Review Records
Generally, many experts estimate an inch of records or 100 pages will take an hour. However, I recall one medical malpractice/ wrongful death case where the decedent died from medical complications. Six months prior he erroneously was given a double-the-dose of a long acting anti-psychotic. There were about 30-40 pages of handwritten physician orders along with physician and nursing notes which were not always legible to the untrained eye. Medical notes were not assembled in chronological order. It took many hours to piece together the sequence of events, crucial to understanding the unfolding picture.
Terms of Art
Physician notes include medical abbreviations and terms of art. They may reference treatment protocols specific to a hospital, or private practice. A Forensic Psychiatrist with an active clinical practice, treating patients, is an asset. Although utilizing a forensic psychiatrist that regularly engages in expert witness work is important, it is vital to obtain an expert with “in the trenches” current clinical experience.
Records from Medical Specialists, e.g. Radiology, Surgery, Neurology, Labs
By the time a psychiatrist enters the second year of residency, they would have reviewed and produced medical records from a myriad of specialties from radiology to surgery. I recommend all medical records be reviewed by the Expert, not only those that address psychiatric history. Forensic work is similar to detective work. Looking at things from many angles is more likely to produce valuable information than narrowing the view to one or two sources. I am a psychopharmacologist, a physician with expertise in medicine and drugs that impact psychiatric conditions or behavior. Lab work is an exceptionally important piece of information in some cases. For example, I have written and been interviewed about date rape drugs like GBH. Skill interpreting lab work in such a criminal case is necessary. Symptoms associated with drugs might include seizures or amnesia. Records across specialties introduce a fuller picture for the Expert Witness.
Legally relevant data is not in the wheelhouse of either a Clinical Psychiatrist or a Psychologist
Clinical vs. Forensic Physician
In a busy clinic or hospital, physicians will do a brief record review focused on the most recent records to look for pertinent data to assist with a rough diagnosis (i.e. bipolar vs schizophrenia vs substance-induced mood disorder) and to guide treatment. Occasionally with treatment resistance or complicated cases, a more thorough review is required.
The clinical psychiatrist does not review with the same level of detail required in a medico-legal setting. For example, records review where an Insanity Defense is at issue may rest on several words in 10 boxes of records.
Psychologist Not Trained or Qualified to Interpret Medical Records
It is important to note a Psychologist does not have training in medicine. Attorneys should be careful to retain the Expert with the appropriate credentials. A well-trained forensic psychologist may be qualified to review legal, law enforcement and correctional records, but are not qualified to interpret medical records, though they may understand them. Even if the records are limited to a psychiatric hospital, there could be labs, x-rays, pharmacy documentation and medical lingo or terms of art unfamiliar to psychologists.
Case Study: Brain Injury was Missed
I recall one PTSD case where the question of whether there was significant traumatic brain injury preceded a sexual assault. Neither of the two psychology experts identified a history of loss of consciousness associated with the brain injury because the plaintiff revealed no such history during the interview. Nevertheless, had a psychologist understood a significant brain injury was present, it would be the professional responsibility to discuss with an attorney the need for a neurologist or Brain Injury Medicine Expert to address this serious and relevant physical injury. In my review of the records I identified the “needle in the haystack” and noticed a “yes” checked off in the Loss of Consciousness (LOC) records buried in one of the medical records in among several boxes of medical records. In addition, due to my expertise in Brain Injury Medicine, I was able to elicit additional medical history consistent with Post Concussive Syndrome (PCS) and Post-Traumatic Amnesia (PTA). With this information, I was able to classify the severity of the Traumatic Brain Injury.
In addition to medical records, an Expert Witness or Psychiatric Consultant is often asked to review legal documents such as:
- Depositions. Depositions are the most common legal document I am asked to review Typically the deposition of a medical expert retained by opposing counsel is presented for review though depositions of parties and experts in non-medical fields can produce valuable information for a forensic psychiatric opinion. The deposition of a forensic accountant, for example, may show erratic financial decisions that alert me to a red flag.
- Affidavits and Declarations
- Trial and hearing transcripts
- Discovery. Documents produced through discovery may contain records not previously submitted to the Expert for review. In this scenario, an expert opinion report may have been issued but in light of new information requires a supplemental report of either changed or unchanged opinions.
Importance of Medico-Legal Qualifications
Records are not reviewed for the same purpose or type of detail relevant to the attorney’s review. It is important to retain a forensic psychiatrist with experience reviewing legal documents.
Forensic Psychiatry, by training and definition, is the intersection of medicine and law. A Board-Certified Forensic Psychiatrist receives training to understand and apply legal standards to their opinions. Forensic. Continuing Medical Education is required to maintain medical licensing. A Forensic Psychiatrist’s CME will include relevant caselaw and the legal implications of medical information.
The right Expert can be attuned to the subtleties a word choice can make. For example, a Forensic Psychiatrist will distinguish between a doctor who, in deposition uses the term “reasonable medical certainty” vs. “more likely than not” which have different legal meanings.
Experience on both sides of the Court Reporter
Depositions and testimonies are better read by those who have themselves been deposed or testified. The line of questioning in cross-examination or deposition can reflect intention to disqualify an expert or impeach their opinions. To understand the environment and intent of a deposition, answers given in the deposition transcript can take on a different meaning.
Understanding the Law.
An Expert is sometimes asked to review relevant law. For example, in the Incompetent Liver case, I reviewed Texas statutory requisite qualifications to opine on Adjudicative Incompetency (https://statutes.capitol.texas.gov/Docs/CR/htm/CR.46B.htm Art. 46B.022)
Law Enforcement and Correctional Records
Whether the records pertain to a crime scene or a car accident, they could be peppered with “cop talk,” “jail jargon” and unique abbreviations such as Ad Seg, DOC and SUSP.[ “SUSP”=Suspect, “Ad Seg” = Administrative Segregation aka being “in Isolation.”, “DOC”=Department of Corrections.]
Most physicians are accustomed to reviewing records from other medical professionals, they are untrained in the nuances of law enforcement and correctional records. Some of the records may pertain to the mental or medical status of the suspect. Sentencing based on an NGRI defense, for example, usually requires treatment in a correctional psychiatric hospital, such as the Jester IV Unit where I was a treating psychiatrist some years ago. A correctional hospital is very different from a non-correctional hospital and has its own rules, protocols and language. Such information must be utilized carefully.
Interpreting Correctional Writing Style
I recall first appreciating the correctional writing style during my fellowship when reviewing the records of a psychotic examinee who smeared feces and drank urine. The records and notes were written in an extremely non-speculative matter-of-fact style as if evidence for a capital case was being collected and documented.
Having worked in correctional facility in a high security pod treating high-risk offenders, I have experience with correctional health. The procedures for dealing with agitated patients differs from the “free world”. Also, the pharmaceutical formularies are limited for a number of reasons. For example, due to the concern for drug diversion, benzodiazepines are rarely used.
Recognizing the Needle
Recognizing what is important among records is similar to finding a needle in a hay stack. Forensic Psychiatrists are trained in both needles and haystacks while clinical psychiatrists are not looking for a needle and do not understand it is a haystack.
Review of Records is Essential
I cannot state strongly enough the importance of a thorough review of available records as an essential piece of issuing a forensic opinion. No diagnosis, malingered or issued, is made in a vacuum. Medical history, Psychosocial (life) history or questionable treatment decisions are information and information are the cornerstone of any Expert opinion.