(University/Institute)
Health and hearsay
Legal actions engage health records as evidence are geared to buttress or strengthen or on the other hand vilify the testimony given at a trial. “Evidence” is understood as “testimony, writings, material objects, and other things presented to prove or disprove a fact.” Health record can be used as proof in either civil or criminal actions as well as in administrative hearings. However, before a party can use health records as evidence in any proceedings, the party seeking to use these records must first determine whether these are admissible; to be admissible, these must be determined as relevant and appropriate. The admissibility of the evidence is determined by the rules of evidence as established by the judge and the jury. In the context of the health records, the appropriate rule is the “hearsay” principle (McWay, 2013).
A person’s health records serve numerous purposes, both medical and non-medical in nature. These can range from monitoring the overall health trends in a community to accurate billing concerns. Withal, one of the more substantive uses for health records is its legal usages-when recording the health status of the person at particular stages in the person’s life. Given the extensive legal protections that safeguard these documents, these data cannot be reported without the consent of the patient and even with the written consent of the patient, these can only be released pursuant to the completion of other requirements.
In legal jurisprudence, health records, when sought to be admitted as evidence in court, are regarded as “hearsay” since the personnel that accomplishes these reports, do not do so under oath. The magnitude and intricacies of seeking to admit the host of health care providers who wrote on the patient’s health records will make it difficult for counselors to consider bringing health care professionals as witnesses in court. When these are not present during the trial, these cannot be subjected to cross examination; all of the data written by the health care officials cannot be cross-examined and thus regarded as hearsay. In this light, since these falls under the comprehension of hearsay, these must be understood under the ambit of the “hearsay rule (McWay, 2009, pp. 49-51).
In engaging the “hearsay rule” in terms of the medical profession, the rule and its impacts must first be thoroughly understood and framed. The operation of the rule proffers that one person cannot give testify regarding the veracity of the statements of another; witnesses can only testify as to what these heard. The jury can accept the text of the statement, but not as to the truthfulness of the statement. The truthfulness or veracity of the statement can only be substantiated by the one who gave the statement or by the testimony of specialist witnesses. The rule arises out of the need for lawyers to cross-examine all witnesses and documents to establish the veracity of the same.
The rules of the court demands that the person who gave the statement be placed in court, be sworn under oath, and then told to repeat the statement in court under oath. In the context of medical documents, all the individuals who wrote on the document will have to be summoned to court and then queried which of the entries in the document/record can be attributed to them as well as the data used by which these based their notations in the record. This activity will consume a considerable amount of time that can make it extremely difficult for the court to finish on time. Given these tangible difficulties, the courts mandated the “business exception rule” stating that the evidence can be admitted by the court without having to compel the presence of the people who made the entries and make them available for cross-examination (LSU Medical and Public Health Law, 2009).
This prerogative is established by law and is engaged to hinder the premature opening or giving of testimony on the information collated by the health care agency in the course of the person’s treatment. The right is engaged to motivate the patient to divulge pertinent information to his/her health care provider, regardless if the information will prove to be denigrating or humiliating to the patient.
The privilege is believed to lie with the patient; nonetheless, this right can be invoked on behalf of the patient by the health care provider to stop any compelled reporting or revelation of the records. Aside from this privilege, other exceptions include the “attorney-client” and “work product” prerogatives. The former refers to the communications rendered between the client and their counsel to be held in confidence for getting legal advice. The latter refers to documents prepared and will be used in the mounting of a litigation to safeguard the same from premature discovery (McWay, 2015, pp. 52-54).
Owing to these particular associations, health care providers are exposed to instances of being held accountable for their actions. Without that relationship, there is no duty and grounds that the parties can lodge complaints in. That relationship starts when the patient seeks treatment and the health care provider gives the treatment. This association is protected under the law as it is regarded as a contract, where an offer has been accepted. This contract is focused on directly providing the patient and this is sustained until such time that the patient terminates the contract or the treatment is no longer needed (McWay, 2013).
The common law of ownership regarding health records declares that the health care providers owns the storage medium of the health care information. Drawing from this principle, it is premised that the proper storage medium for the data is in the control and monitoring of the health care provider and can only be accessed with compliance of stringent legal processes. When the provider is served with legal documents and processes, the provider is faced with a dilemma; whether to acquiesce to the demands of the court, or to defend the rights of the patient? The court exposes the provider to revelations that would be banned by law. A court summons cannot obviate the prohibitions set down by law to allow the disclosure of a person’s medical records.
If the records show that during a certain period of time, it is only allowable upon the presentation of a court process and a “subpoena duces tecum.” One of the variants of this option is a “show cause” order. This is a court process mandating organizations or persons to appear before the court and convince the court why a specific course of action must not be followed. Should the person or organization be unable to convince the court from its earlier decided course, the court will have no recourse as it originally planned (McWay, 2015, pp. 56-58)? Depending on the jurisdiction, one must verify whether medical records are regarded as hearsay or whether one must set down parameters to avail of the exceptions (McCaffrey, 2007).
References
LSU Medical and Public Health Law (2009) “The hearsay rule” Retrieved from <http://biotech.law.lsu.edu/map/TheHearsayRule.html
McCaffrey, B (2007) “Medical evidence in litigation” Retrieved from <http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/medicalevidence.html
McWay, D.C (2009) Legal and ethical aspects of health information management. Boston: Cengage Learning
McWay, D.C (2013) Today’s health information management: an integrated approach. Boston: Cengage Learning
McWay, D.C (2015) (3rd ed.) Legal and ethical aspects of health information management. Boston: Cengage Learning
