The Medical Record Is the Bible: How Experts Reconstruct a Delivery

A family brings me what they remember of a delivery. I want to hear all of it, and Chapter 7 describes how I listen. But memory is one witness, and a malpractice case needs more than one. The other witness is the medical record, the written account of a hospital stay as the nurses and doctors charted it.

A lawsuit over a delivery is a reconstruction. I was not in the delivery room, and the jurors who decide a case were not there either. What exists is what got written down, so the work is to read it closely enough to say what happened, in what order, and whether the standards of care were met.

This chapter follows that work from the first reading of the chart to the last. It covers the notes, the times, the baby monitor strips, the practicing doctors who read the record with us, and the records written after a child is born. All of it is work on the front end of a case, and it takes months.

I start with a person, not a chart. I consider myself a pretty smart guy, but "a lot of it is in the groundwork." The groundwork begins with the first interview, where I let a client tell the story in their own words from beginning to end. Medicine has the same idea in what doctors call the history, which means talking to the patient. Older doctors will tell you that "the more you listen to the patient, the more the patient will tell you what's wrong." I use that same principle in the interview stage.

The record comes next. Let's suppose a family has called me about a delivery they believe went wrong, and their child now has cerebral palsy. Step one is a long conversation that runs both ways. I ask about the labor, the prenatal care, what happened afterward, and what the child is like. Step two is the chart. Then comes a consultation with doctors, which I take up below.

What do I mean by the chart? I mean the nursing notes and the doctor's notes, the lab results, the X-ray results and the MRI results. In my words, "anything that's in that medical record is really the core basis for a medical malpractice case." That puts a duty on the lawyer: "It's incumbent upon the lawyer to make sure they are intimately familiar with that medical record."

I call the record a friend for a reason. "That medical record is your friend." It "has all the things that you're going to need in order to not only know the medicine, but to be able to put your fingertips on the things that you need." A lawyer has to learn the medicine from the page, and then be able to find the one entry that matters when the case calls for it.

Getting hold of the chart is easier than it used to be. Medical records once existed in paper format, had to be requested on paper, and took weeks and months to arrive. Today, in my words, "we have health portals where everyone has access to their medical records." Maryland law also speaks to a provider that holds back a record. Under Health-General section 4-309(a), a health care provider who knowingly refuses to disclose a medical record within a reasonable time, but no more than 21 working days after a person in interest requests the disclosure, is liable for actual damages. That is the statute speaking, not me.

A hospital record carries a quality that makes a reconstruction possible: it carries times. I describe the charting this way. "Everything is charted, all the times, all the actions when the nurse comes in, when a nurse comes out, when a doctor comes in, when a doctor comes out." Each of those entries is a point on a clock. Put enough of them in order and you can see when a nurse came in, when a doctor left, and what was written at each point.

The lawyer cannot ask the clock on the wall what time it was. The times in the chart are how the lawyer gets one. To prove a case, "you have to go through the medical records very, very carefully." The doctors who consult with us do the same, because an expert has to become intimately involved with the medical records. The record is the Bible of the case, and that is why it gets read so carefully.

The next move is to build chronologies. A chronology is the events in the order they happened, laid out so that anyone can see when things happened. That means going through the records line by line and making a timeline for each stretch of the stay.

The notes are one source for that work, since the timeline starts from the doctor's notes and the rest of the chart. A second source exists, and I treat it as the more important one. It comes next.

If you have been through labor in a hospital, you will remember the belts. When a mother goes into labor, belts are put around her stomach. "One measures the contractions and one measures the baby's heart rate." What those belts record is what we call the baby monitor strips, or the baby strips.

That is where the timeline gets its most important entries. In my words, "the more important way that you do that is what we call the baby monitor strips." The notes record what people did and what they wrote down. The strips come from the monitor, and I give them more weight.

I go further. The strips are "the biggest piece of evidence that we can use." The reason is what they can show. A strip can show when an injury occurs, whether the cause was a delay in delivery or something that happened earlier. That bears on the question I put to the records in a birth injury case: whether a delay in delivery caused brain damage or cerebral palsy. A record that can show when an injury occurred speaks to that question directly.

A strip showing when an injury occurred is not the same as a finding that someone broke the standards of care. Deciding that is the work of the next step. How a strip read in one particular case is told in Chapter 17.

After the interview and the first full reading of the chart, we bring in medical doctors. These are practicing obstetricians, or other specialists, and they work with us. The task I give them is "to go through the medical records together with us and to determine whether the standards of care were met, whether those violations of the standard of care caused injury and the severity and permanency of those injuries."

That sentence holds three questions. The first is whether the standards of care were met. The standard of care is the term that we use for nationally recognized guidelines of what doctors should do and shouldn't do. The second is whether a violation of those guidelines caused the injury. The third is how severe and how permanent the injury is. A lawyer reads the chart and keeps the timeline. The doctors are the ones who work through those three questions with us.

This is why a case takes time. On a first call, I can often tell a caller there is no case, and Chapter 6 explains why. Confirming that there is a case is another matter, and it takes months.

Doing that work on the front end matters, and the beginning is also when expectations get set. A sound strategy, as I see it, means having a good idea of what the case is about and a good idea of what the client's expectations are. Lawyer and client have to start from the same expectations. In practice, that means rolling up your sleeves and doing a lot of hard work.

Nobody can undo a delivery, and the delivery records look backward. The records written afterward look forward, and they answer a different question, which is what a child's life is going to need.

For that question, I put the weight on a different set of pages. In my words, "the records that matter the most are the records that happen afterwards." Many of these children go to specialists, and in Baltimore one of them is the Kennedy Krieger Institute. Its records show the diagnosis and the therapies a child needs, such as occupational therapy and speech therapy. They also answer questions like these: "Do they need to have specialized equipment? Do they need to have care in the home?" All of these records help me build a case.

With that information, we consult a specialized expert called a life care planner. A life care planner is someone who is able to "project out into the future all the medical care and all the services that a baby who has cerebral palsy is going to need for the rest of his or her life." How that projection becomes a figure a jury hears is the subject of Chapter 14.