Is health information always admissible as evidence in court? Explain your answer and provide APA references. Solution What is one of the most important non-clinical uses of the medical redcord? It serves as the legal document recording a particular episode of a patient\'s care. (of the facility and treatment) When can a patient\'s information be disclosed? With the written consent or authorization of the patient. pursuant to statutory requirements or on proper legal process. Define Evidence Testimony, writings, material objects, or other things presented to prove or disprove a fact. Define ADMISSIBLE EVIDENCE Info. or things that may be admitted as evidence in a trial if the applicable rules establish that the info. is BOTH PERTINENT and PROPER (timely, accurate, complete records) for the the judge or jury to consider when deciding issues involved in the lawsuit. What is HEARSAY? Out-of-court statements that are offered to prove the truth of the matter asserted. Not signed under oath. Why are medical records considered hearsay evidence? Because the health-care providers making the statements, (entries into the record) do not do so under oath in a court of law. Therefore under the Hearsay rule they are not admissible as evidence in court. So, if Hearsay evidence is not addmisible in court, how can medical records be an exception to the rule? There ARE exceptions to the rule... BUSINESS RECORD EXCEPTION to the HEARSAY EXEMPTION RULE specifically allows medical records to be used as evidence. if the person offering the records can successfully convince the judge the records are kept in the ordinary course of business and not in preparation for litigation. BUSINESS RECORD EXCEPTION to the HEARSAY EXEMPTION RULE HIM Mgr. / Custodian must establish in court the FOUNDATION and TRUSTWORTHINESS of their record-keeping. The three elements of a FOUNDATION REQUIREMENT to the hearsay exemption? Person submitting the evidence must extablish that the record was; 1. Made and kept in the ordinary course of business 2. recorded at or near the time the event 3. By a person with knowledge of the facts, events, conditions, opinions, or diagnoses appearing in it. How is TRUSTWORTHINESS REQUIREMENT to the hearsay exception established? One of the requirements of the Business Record Exemption to the hearsay rule. HIM/custodian must testify to: - Internal policies/procedures governing access to meddical record - quality control techniques (i.e. corrections & abbreviations of the record) How does the party wishing to introduce a medical record as evidence establish the accuracy and trustworthiness of the medical record? They will bring in the custodian of medical records to testify to the accuracy and trustworthiness of the records. How does the Medical Records Custodian testify as to both the foundation and trustworthiness requirements of the business record exception? The custodian, the HIM professional, testifies in a trial or deposition: - To FOUNDATION - testifi.

1. Is health information always admissible as evidence in court? Explain your answer and provide
APA references.
Solution
What is one of the most important non-clinical uses of the medical redcord?
It serves as the legal document recording a particular episode of a patient's care. (of the facility
and treatment)
When can a patient's information be disclosed?
With the written consent or authorization of the patient.
pursuant to statutory requirements or on proper legal process.
Define Evidence
Testimony, writings, material objects, or other things presented to prove or disprove a fact.
Define ADMISSIBLE EVIDENCE
Info. or things that may be admitted as evidence in a trial if the applicable rules establish that the
info. is BOTH PERTINENT and PROPER (timely, accurate, complete records) for the the judge
or jury to consider when deciding issues involved in the lawsuit.
What is HEARSAY?
Out-of-court statements that are offered to prove the truth of the matter asserted. Not signed
under oath.
Why are medical records considered hearsay evidence?
Because the health-care providers making the statements, (entries into the record) do not do so
under oath in a court of law. Therefore under the Hearsay rule they are not admissible as
evidence in court.
So, if Hearsay evidence is not addmisible in court, how can medical records be an exception to
the rule? There ARE exceptions to the rule...
BUSINESS RECORD EXCEPTION to the HEARSAY EXEMPTION RULE specifically allows
medical records to be used as evidence. if the person offering the records can successfully
convince the judge the records are kept in the ordinary course of business and not in preparation

2. for litigation.
BUSINESS RECORD EXCEPTION to the HEARSAY EXEMPTION RULE
HIM Mgr. / Custodian must establish in court the FOUNDATION and TRUSTWORTHINESS
of their record-keeping.
The three elements of a FOUNDATION REQUIREMENT to the hearsay exemption?
Person submitting the evidence must extablish that the record was;
1. Made and kept in the ordinary course of business
2. recorded at or near the time the event
3. By a person with knowledge of the facts, events, conditions, opinions, or diagnoses appearing
in it.
How is TRUSTWORTHINESS REQUIREMENT to the hearsay exception established?
One of the requirements of the Business Record Exemption to the hearsay rule. HIM/custodian
must testify to:
- Internal policies/procedures governing access to meddical record
- quality control techniques (i.e. corrections & abbreviations of the record)
How does the party wishing to introduce a medical record as evidence establish the accuracy and
trustworthiness of the medical record?
They will bring in the custodian of medical records to testify to the accuracy and trustworthiness
of the records.
How does the Medical Records Custodian testify as to both the foundation and trustworthiness
requirements of the business record exception?
The custodian, the HIM professional, testifies in a trial or deposition:
- To FOUNDATION - testifies how records are created, recorded and maintained. (usual course
of business)
- To TRUSTWORTHINESS - testifies regarding the internal policies / procedures governing
access to the medical record AND the quality control techniques (ways of making corrections to,
and using abbreviations in the record.
What is PRIVILEGE?
The legal right to keep certain information confidential and protect it from subpoena, discovery,
or introduction into evidence at trial.

3. When is the privilege considered to be waived in the case of health information?
If the confidentiality is breached by the party holding the privilege... done by either carelessness
or deliberate disclosure. (patient is the one who holds the privilege)
How is the physician-patient privilege created?
It is created by statute
How is the physician-patient privilege used?
a. to prevent disclosure of PHI by healthcare providers
b. to encourage patients to tell dr.'s everything so the proper diagnosis & treatment can be
rendered
c. privilege belongs to (rests w/) the patient & healthcare providers must protect the privilege.
Why is the physician-patient privilege important to health-care
Trust = better care. If the patient knows they can trust their cdoctor not to disclose their PHI,
then the patient will feel comfortable disclosing possible embarrassing information and/or all
neccessary symptoms. This will hopefully insure proper dignositc testing, treatments &
diagnoses.
When is the physician-patient privilege not applicable?
In criminal actions
Will contests (being questioned/ challanged)
physician licensure proceedings.
Exclusions exist to prevent admission of evidence in a court case; What is one way for a
healthcare facility to prevent admission of evidence when there's been an unexpected outcome
as a result of medical care?
Health-care facility representatives may issue an APOLOGY to the patient's family.... the "I'M
SORRY STATUTES"
Two Categories of APOLOGY Exclusions...
1. FULL APOLOGY - offering an expression of Sympathy AND Admission of Responsibilty for
outcome (I'm sorry and I take responsibility)
2. PARTIAL APOLOGY - only expression of Sympathy. (I'm sorry only)

4. Do the APOLOGY Exclusions exist nationwide?
No, only some states acknowledge it; the exclusion laws regarding apology differ by state.
What are the apology exclusion laws in Colorado?
Colorado excludes apologies to the patient or their relatives or representatives, concerning an
unanticipated outcome of medical care.
What are the apology exclusion laws in Oregon?
Oregon law excludes any apology or expression of regret from admission of liability for any
purpose, not just those arising from the delivery of health care.
What are two forms of "Proper legal Process" used for removal/request of original records?
1. Valid Subpoenas
2. Court orders signed by a judge
What can happen if the health information manager does not respond to a subpoena or a court
order?
Courts can file contempt of court charges against the HIM professional.
What can happen if the HIM pr. improperly releases medical records?
HIM pr. may be subject to liability for breach of confidentiality. (also put health-care provider at
risk)
Define Subpoena
a summons from the courts or attorney requiring a witness to appear somewhere and do
something. There are two common types of subpoena
Define Subpoena ad Testificandum
A subpoena commanding the appearance of a witness to give testimony.
Define Subpoena Duces tecum
A subpoena commanding you to appear somewhere and bring documents and other things; and
to possibly give testimony too. Bring physical evidence before the ordering authority or face
punishment.
What are the eight common elements of a VALID SUBPOENA?

5. 1. name of court where lawsuit is brought
2. Names of the parties to the lawsuit
3. Docket number of the case
4. Date, time, and place of the requested appearance
5. Specific documents to be produced
6. Name, telephone # of attorney who requested subpoena
7. Signature, stamp or seal of official empowered to issue the subpoena
8. Witness fees, where provided by law.
Subpoenas issued in state court are issue pursuant to?
State rules....
These may allow a non court official to issue a subpoena... i.e. notary public or court appointed
official.
What is a subpoena delivered/issued by a Notary Public called?
A Notary Subpoena.
What must accompany a Notary Subpoena?
A signed authorization for release of information.
What would a Notary subpoena requst the HIM manager to do?
Obtain a valid Authorization for Release of Information (ROI) signed by the patient. Make sure
it accompanies the Notary Subpoena.
List three difference between federal court subpoenas and state court subpoenas
1. Who may issue the Subpoena
2. Advance Notice Provisions
3. Witness fees differ
Who issues subpoenas in Federal Court and in State Court?
Federal Court Subpoena = issued only by Clerk of Court
State Court = issued pursuant to state rules; per rules it may be a clerk or a noncourt official.
Advance Notice Provisions
Federal court has no provisions requiring advance notice for a subpoena in connection with
discovery.

6. STATE COURT varies... advance notice for a discovery subpoena may be required depending
upon the state.
Witness Fees btwn. Federal & State Court
WItness Fees are generally more in Federal than State court.
Court Order
Summons or Subpoena signed by a judge. Authorizes disclosure of patient-specific health
information that would otherwise be prohibited by statute and regulation. (A subpoena connot
authorize disclosure that would otherwise be prohibited by statute & regulation)
Seven Components of a valid court order authorizing disclosure of medical records.
1. Name of the court issuing order
2. Nameof parties in the lawsuit
3. Docket number for the case
4. Limitations for disclosure of patient record; those part of the patient record essential to fulfill
objective of the order
5. Limitations on the party whose need for the info. is cause for the order.
6. Any other limitations to protect the patient, physician-patient relationship, and/or treatment by
sealing the court proceeding from publlic scrutiny
7. Signature of the judge
Can a subpoena alone authorize disclosure of a patient's medical records?
No, not always. Subpoena can't authorize disclosure that would otherwise be prohibited by
statute & regulation.
Certain types of records are further protected by state and federal statutes.
What are 3 instances where a subpoena can't authorize disclosure of medical records?
1. Invalid authorization or no authorization signed by patient.
2. HIV, AIDS, Alchohol/Substance abuse, phsychiatric treatment or diagnosis are more
protected by federal law and require special authorization signed by patient.
3. Invalid subpoena (missing a component)
What is a SHOW CAUSE order?
A court order directing a person or organization to appear in court and explain why the court
should not hold the person or organization in contempt-of-court (or should not take a proposed

7. action)
When would a SHOW CAUSE ORDER be issued?
Only in the event of no response to the subpoena or court order originally issued.
What are the 5 typical methods of discovery?
1. Deposition
2. Interrogatories
3. Production of Documents & Things
4. Physical/ Mental Exam
5. Requests for Admissions
Difference between Interrogatories and Requests-for-Admissions?
Interrogatories = written questions asking for facts about the case; designed to gather
information.
Requests-for-Admissions = written questions designed to obtain an admission of certain facts
(obtain guilt).
What does ESI stand for?
Electronically Stored Information
Order for Preservation vs. Notice of Preservation
NOTICE of PRESERVATION= a letter from a lawyer notifying an adversary of the need to
preserve relevant ESI, even if paper copies are available.
ORDER of PRESERVATION = A court order requiring a party to preserve ESI & other
evidence, regardless of the party's need to engage in routine deletion or destruction practices/
procedures.
What is HIM's written policies and procedures for responding to subpoenas and court orders
called?
a LITIGATION PLAN... consists of policies/procedures of how to respond to legal process
requests. ..... developed w/ health-care provider's legal counsel and health-care team members.
LITIGATION RESPONSE TEAM
HIM department's advisory committee for how to respond to subpoenas and court orders.
Consists of policies & procedures that address how to respond to legal process.

8. Should HIM mgr. automatically assume that every subpoena requires the release of records?
No, NEVER Assume! a subpeona automatically waives a patient's right to privacy.....
and know specifically in what instances this applies; i.e. some medical records are more
protected by statutes, rules & regs. than others.
What happened in John Roe vs. Jane Doe?
BREACH of CONFIDENTIALITY CASE... HIV status: Roe, a doc, recvd. a subpoena & signed
releas of info. authorizing release of Doe's medical information releated to treatment for a
worker's comp. case. Dr. Roe mistakenly released ALL of Doe's medical records to her
employer including her HIV status. Patient sued for breach of Confidentiality... Court awarded
punitive damages to patient. authorization was not provided for release of HIV status....
If HIM mgr. discovers that infomation should not be released pursuant to the subpoena, how
should the HIM mgr. proceed.
1. May respond in writing to the attorney letting him know your facility can't comply w/
request...
3. May file a motion to Quash
2. Contact requesting attorney, tell him ROI authorization is noncompliant and then get the
patient's signature.
3. Eliminate unauthorized portions of records requested and release the remainder, acknowledge
in writing it is partial and why.
What is MOTION to QUASH?
A legally approved method to challange validity of Subpoena duces tecum.
How does one certify a record for court?
Written certification letter signed by the custodian stating the records are exact duplicates of the
originals.
The methods vary from state-to-state... Some states require custodian's signature be notarized...
ohio has this requirement.
Describe Pacheco v. Ortiz, Ohio 1983
Ortiz sent subpoena duces tecum to CCF,to appear at a deposition and produce records regarding
Pacheco's injury treatment ... CCF failed to comply or show up for deposition... CCF entered
written Show of Cause to court stating that the records subpoenaed would not be produced, nor

9. did they show up for the deposition because there was not an authorization signed by patient
stating that release of the records was approved by the patient. Court ruled with CCF.