Researchers Look at Role of Medical Records in Domestic Violence Legal Cases
When doctors treat battered women, the medical notes they record may reach beyond the examining room to the courtroom. Yet many doctors don't know the best ways to document their treatment of abused women to help the women in the legal arena, says Nancy Isaac, senior research scientist at the Harvard Injury Control Research Center.
Isaac recently co-authored a report called Medical Records as Legal Evidence of Domestic Violence with Pualani Enos, a colleague from Northeastern University School of Law.
"This is really one of the first times that a legal perspective in a broad sense has been applied to medical records with respect to domestic violence," said Isaac.
Isaac and Enos studied nearly 100 medical charts of women who had previously been identified as abuse survivors. They found that physicians frequently did not screen for abuse and that the notes taken would not mean much in a courtroom.
"The potential risks of documentation to the clinician or the patient appear to be more salient to clinicians than the potential benefits," write the report's authors. "This is not surprising given that they have received little information about why and how medical records can assist abuse survivors in legal settings."
What an abused woman says during an examination must be documented correctly to be of legal use, said Isaac. All states have hearsay rules, which prohibit statements made outside of the court to be used as testimony. Yet many states allow the introduction of "excited utterances" or "spontaneous exclamations." These statements are made during and soon after an event by an agitated person who was involved in the episode. Physicians may record something like "patient kicked in abdomen by boyfriend." But Isaac said such a description is too vague and would not pass for an excited utterance, which requires that
1. the statement must clearly come from the patients
2. the time that has lapsed between the event and the statement must be indicated
3. a description of a patient's demeanor must be included
Some clinicians have been trained not to use certain words like "hysterical," but they may overgeneralize and be reluctant to address behavior at all, said Isaac. "If clinicians don't describe what they are observing in terms of a woman's demeanor, then they have done a disservice to the patient in the sense that they have made it harder to introduce what she said in court," said Isaac.
She advises that, when writing descriptions, clinicians should be careful not to use words that have specific legal meanings like "alleges." That word implies the clinician doesn't really believe the patient, said Isaac.
Records are best accompanied by photographs of the injuries because they bring judges and juries back to the moment shortly after the abuse. A woman may appear in court months after the incident with no visible injuries, making it easier for a defense attorney to dismiss the violence. In Isaac's review, only one medical record included photos.
"If you have pictures, you are golden," said Isaac. "The photos allow the plaintiff's attorney to say: 'This is what this person looked like. She's got bruises all over her face. She's got a gash. Her hair is a tangle.'"
One of the simplest steps a clinician can take in documenting injuries is making sure that their handwriting is legible. Isaac found that one-third of the notes from doctors or nurses contained vital information that was impossible to read.
"Most health care professionals want to do their best to help abused patients," said Isaac. "Once they understand that these practices will make their records more useful, I think they will be inclined to make the appropriate changes to the way they document visits."
Tips When Recording Signs of Abuse
In their report, Isaac and Enos make several recommendations about how to make medical records of domestic violence victims legally useful:
