Hiding in Plain Sight:
Bringing
Records and History
into Sharper Focus
By Pia Quimson-Guevarra, DO
What Is a Medical History?
Forensic Relevance
Why Attorneys Ask
Psychological and/or medical impairment could influence your client’s case, regardless of plaintiff, defense, prosecution or administrative private sector role.
In my experience, attorneys hope my answers will help them decide whether to accept a client in the first place, or perhaps develop a case strategy.
- You seek clarity about a person’s mental state and importance/lack of importance to the matter at hand.
- Opposing counsel has a mental health expert witness; is there a reason to get an independent review by an expert you have retained?
- Confusion about the correct qualified expert witness. Is a Forensic Psychiatrist the doctor appropriately qualified. Logical and strategic reasons drive that choice, versus a psychologist, LCSW or even the litigant’s own personal doctor.
- Is the plaintiff’s treating doctor a good choice to testify about their own patient? There are important and concerns with consequences, highlighted in a rubric below.
Getting Answers
The attorney, and trier of fact are well-served by an informed and objective medical-legal opinion, at any stage of a case’s evolution.
“Informed” is the topic explored here.
This article is intended to clarify and discuss sources of information that might contribute to the basis of those opinions.
I form a forensic impression of a person’s mental status or mental state by drawing on information from many quarters.
Medical records, like provider notes, are only one resource for my inquiry.
Expanded Definition and Fact-Finding
Attorneys will sometimes submit to me physician notes as a starting point. While provider notes may help me, or even prove to be conclusive, tapping a larger body of information reveals the bigger picture.
That bigger picture is the Medical History.
A “Medical History” includes and exceeds chart notes. In a forensic setting, the history is developed from an array of material: medical, legal and verbal.
To fully flesh out the medical history and render robust findings, a Forensic Psychiatrist applies a unique perspective and leverages specialized techniques, like a forensic timeline, to the familiar “records review.”
The medical expert witness is an objective investigator.
The forensic lens is an indispensable element.
Forensic Psychiatrists draw on training and experience, to apply that lens.
5 Sources
The focus of this article is to describe in greater detail 5 types of information which I may be asked to consider in my role as a forensic psychiatric examiner and physician expert witness.[1]
Each section below highlights a focus to demonstrate what information may be present and how it can be informative:
Medical records.
Examples below: Outpatient Behavioral Health, Physician Records and diagnostic tools, Pharmacy Records.
Independent Medical Examination or IME)
This is a forensic interview with the evaluee. I will describe features of an IME and its role.
Medically informative, but not a medical provider’s direct records.
Legal records. Depositions of a provider, the evaluee themself, or a family member or observer. If it’s relevant, the testimony can be compared against the medical and ancillary records.
Collateral interviews. I may interview family, friends or anyone whose observations and other information might be relevant.
Ancillary records germane to certain types of cases.
Sample application: Testamentary Capacity, Undue Influence, Standard of Care, Elder Abuse or any case where the mental status or care of an elderly person is at issue:
Assisted Living and/or Nursing Home records. interesting but attorneys may want to know why.
Audio, video, and photographs.
Media is informative. I do not discuss it in this article given the varied types and purposes which are generally case-specific.
First, I will discuss (a) the timeline as a forensic tool preparatory to a medical-legal review of a person’s medical history and (b) distinctions between the medical provider vs. a forensic evaluator who is a physician.
A timeline is helpful because medical-legal opinions center around an alleged concrete event.
Medical conditions unfold over time.
Prequel, Present Day, Sequel.
Timeline
Restoring Chronology
Records are not always provided chronologically. During my review, I construct a timeline by cross-referencing what I learn and what raises questions.
My investigation “picture” on the timeline includes:
- Medically recorded symptoms, diagnoses and treatment. When, Where, How, Why. It includes psychiatric and non-psychiatric disease, i.e., “somatic” or “bodily” diseases. Physical injuries are somatic. (Note: “psychosomatic” is something different.)
- Diagnoses rendered during psychotherapy.
- Reports from family, friends, caregivers, or anyone in the orbit of the examinee during the period in focus.
- Narrative. Evaluee’s recitation of their medical history. (Evaluee, e.g. litigant or decedent.)
Behavioral Clues
I examine reports of behavior such as those found in a treating therapist’s notes, or observations recorded by others–and consider it in the context of medical and psychiatric health, and response to treatment over time. Behavior is one clue in assessing mental health:
- Behavior that raises a flag for a psychiatric or other medical condition might belong on the timeline.
- Treater observations, e.g. a non-psychiatrist doctor notes their patient is distracted and confused or seems despondent.
- Indicia of a Personality Disorder (DSM5TR)[2][3] which are “defined traits that can drive behavior…to be classified as a personality disorder, one’s way of thinking, feeling and behaving deviates from the expectations of the culture, causes distress or problems functioning, and lasts over time.” –American Psychiatic Association.
Medical Records: Different Purposes
Treater vs. Forensic Psychiatrist
Treating Doctor=Patient Advocate
Medical Records to Help Treat and Relieve Syptoms
The provider is tasked to diagnose, treat and alleviate uncomfortable or painful symptoms, and pursue recovery for their patient’s well-being.
Treating physicians generally think of the medical history as the documents, or electronic records, that are accessible and relevant to that role.
The provider’s focus is on the progress notes of other doctors (daily updates on the patient’s condition, assessment, and plan of care), laboratory and radiology studies and reports, even notes by allied providers (e.g., social workers, hospital administrators, and discharge planners).
Do No Harm: Medically or Legally
Giving testimony on their patient’s behalf violates Patient Rights under AMA ethical guidelines [4] and the Hippocratic Oath because the case outcome could, in fact, do harm to the patient.
The treater is not a good choice as an Expert Witness in their patient’s lawsuit.
Expert Witness=Objective Analysis
A forensic psychiatrist’s task is to examine the medical history which draws information from many quarters, medical and legal.
There is no doctor-patient confidentiality as there is no doctor-patient relationship.
Objectivity vs. Advocacy
The forensic psychiatrist strives for objectivity. There is no obligation to plaintiff, defense, or legal outcome. Nor is there an obligation to someone’s health outcome.
A forensic psychiatrist also approaches information as a physician with medical-legal training and a defined scope.
They may review the same progress notes and laboratory studies as the treating provider.
The purpose is to apply their findings about matters within their expertise [5] to a legal controversy and identify what is material to the court.
A Forensic Psychiatrist is qualified and appropriate to serve as an Expert Witness, about matters within their expertise.
What the Records Can Tell Us
Outpatient Mental Health
Physician Notes
Verbal History
IME
Hospital and ER
Trauma, triage, treatment and recovery.
Legal and Ancillary Records
Nursing Homes and Assisted Living
MEDICAL RECORDS
Behavioral Health
Physician Notes and Diagnostic Testing
Pharmacy Records
Outpatient Mental Health
Psychotherapy, Medication and Other Treatment
Therapist Notes: Outpatient Mental Healthcare, Clinics, and Solo Practitioners
Physicians, Psychologists, Nurses, MFTs and LCSWs
Mental health treaters generally fall into these categories.
- Psychiatrists (MD, DO)
- Psychologists (PhD, PsyD)
- Physician Assistants (PA)
- Licensed Nurse Practitioners (LNP)
- Licensed Social Workers (LCSW)
- Licensed Professional Counselors (LPC)
- Licensed Marriage and Family Therapists (LMFTs) (some of whom hold a PhD in the field)
- Counselors (training, a degree, licensing and certification vary state to state)
- Peer-Counselors (training, licensing and certification vary state to state)
Qualifications of the Note-Taker
When I review the notes of a therapist, the qualifications of that note-taker might be relevant.
For example, a psychiatrist may make notes that include medical diagnoses, interpreted as a physician.
A psychologist can reference the medical diagnoses but not treat them or even interpret them. They are, however, qualified to make psychological diagnoses and recommend further discussion with a physician including a possible medication regimen. Psychologists can prescribe medication in at least 5 states (as of the writing of this article.) LCSWs and LMFTs cannot.
If an evaluee is taking an antidepressant, for example, the relationship between a non-prescribing therapist or counselor, and the doctor could be relevant.
Nurses, Psychologists and Non-Physician Mental Health Providers
Physician Assistants and Nurse Practitioners provide mental health treatment in settings including group practices and clinics, though usually under supervision by a physician and/or Medical Director. Nurse Practitioners and Physician Assistants may have specialized in mental health treatment. Licensed Nurse Practitioners and Physician Assistants treat medical conditions in most states.
The scope of treatment by a Licensed Social Worker (LCSW) or Licensed Marriage and Family Therapist (LMFT) is a matter of training, state practices and other nuances of standard practice.
Counselors
Counselors, peer counselors and other “supportive” therapists may also be part of an evaluee’s pursuit of recovery from an alleged mental helath injury, though such a person may or may not be qualified to render the treatment needed.
In Oregon, the Board of Licensed Professional Counselors and Therapists sets out the requirements for this licensure.
Certification is available for peer counselors in some states, but the requirements for training can be as few as 80 hours vs. 1,500 supervised hours for a licensed Psychologist. Counseling certification is available in some states, like Oregon, Washington or California.
Do Providers Coordinate Treatment?
If a treater is not a psychiatrist but is working with a psychiatrist or other prescribing professional, it is important to know the relationship among the treaters. Are they working as a team in a clinic or is the evaluee seeking independent treatment for each perceived need?
General Practitioner or Family Physician Prescribing for Mental Health
Many primary care providers (Physicians) prescribe psychiatric medications for their patients though they are not Psychiatrists. At an annual physical, for example, a family physician might identify indications of a diagnosis of a Depressive Disorder. They might prescribe an SSRI for depression, or authorize refills of medications.
The GP Stepping Outside Their Lane
Unlike Psychiatrists, the GP’s training in diagnosing psychiatric conditions is limited. Risks associated with medications for mental disorders, and their side effects, are such that it is advisable to let the specialist do the treating, in this case a Psychiatrist or Psychologist.
Most physicians do receive training in mental disorders. But, like any symptoms that call for a specialist’s review, referral is appropriate. Note that physician training generally includes familiarity with limited cognitive tests like the MMSE. Such references in the notes of a GP or non-psychiatrist physician may be relevant to me.
Cross-referencing any medication noted by the provider against pharmacy records would be useful if medications are prescribed by someone who is not actually treating the examinee.
The Role of Medications to Treat Mental Illness. The Records that Document Them.
Mental health conditions are sometimes treated with medication and, in fact, conditions like Depression and Anxiety Disorders generally respond well to treatment with medication. Side effects, and interactions among medications is in the training of a psychiatrist. “psychopharmacology” [6] describes specialization in what can be a complex consideration. It is especially important as a Forensic Psychiatrist, to scrutinize this information depending on the case before me.
Of note, other conditions like PTSD and Bipolar Disorder may be more treatment-resistant.
Pharmacy Records
Pharmacy records can be cross-referenced against treatment notes for consistency. See below.
Physician Notes
Physician notes are interesting to a Forensic Psychiatrist because of what they contain as well as what is absent.
Hospital Records
For purposes of this article, I include, generally, hospital or other treatment records which include medical detail included in the physician and RN chart notes. In reviewing any treatment records, the goal is the same.
I am forming a picture of the evaluee’s interaction with their own treatment, as well as the quality of care they received.
My interests are also behavioral.
As a psychiatrist I look at, and beyond, a diagnosis and treatment.
- What was the patient’s involvement in their own treatment?
- Were doctor visits consistent with the diagnosis, in frequency and timely follow-up?
- How were specialists involved, including a psychiatrist if appropriate?
- Was a patient compliant with the treatment plan. Are they taking their medications and showing up for appointments? Do they follow through on recovery plans like physicial therapy, or mental healthcare?
- Observations of behavior by the physician or physician’s staff. In a competency case, for example, I would be interested if the person frequently did not show for appointments or behaved erratically at the doctor’s office.
More Treatment-Related Records.
Billing Records
Billing records can be helpful if they document procedures and treatment that are not found elsewhere in the record.
Pharmacy Records
In all treatment records, medications a patient is taking may or may not align with a pharmacy’s records. Also, more than one pharmacy could be filling the doctor’s prescriptions.
Pharmacy Records
As a result of the relationships between mental health and medication treatment, pharmacy records are another source of information.
Medications are always discussed in an IME, and a prior review of pharmacy records could be helpful.
The evaluee tells me about their medications. Does it line up?
During the IME I verbally ask the examinee what medications they are taking. This is not always a simple recitation in which I note the medications and move on.
I also observe their account of their medications to investigate how they generally understand and comply with their treatment.
I may draw on the pharmacy or other records to compare the specific medication, dosages, and instructions against what the evaluee tells me.
Pharmacy records may provide prior medication history which may belong on the timeline, especially if a preexisting or medically complex history was treated with medications.
I also would look for possible controlled substances and concerns of aberrant use.[7]
The prescriptions may also reveal a treater who has not been mentioned in the records.
“With the consideration of multiple data sources, varying points of view may have to be reconciled. Memory deficits, effects of treatment, and malingering may affect the evaluee’s statements. Collateral information may add to or complement the evaluee’s account and may be compared with the evaluee’s account to help detect malingering and assess reliability. However, the biases of various reports also should be considered.”
American Academy of Psychiatry and the Law Practice Guideline for the Forensic Assessment.[9]
Independent Medical Examination
Forensic PSychiatric Interview
The Examinee's Verbal Medical History
An Independent Medical Examination (IME) as it is used here is a face-to-face forensic assessment of an examinee’s physical, cognitive, psychological, and psychosocial condition at the time of the examination. Forensic Psychiatrists receive extensive training in conducting a medical-legal IME.[8]
An IME includes eliciting a Medical History. (Click to read more about “What is a Psychiatrist’s Medical-Legal IME?”)
During an IME, I will ask the examinee about their health history. The purpose is not to take it at face value. In fact, it may be inconsistent with records, which opens a line of inquiry.
How does the evaluee behave?
In addition to the content of the IME, I observe the examinee’s behavior. During the evaluee’s verbal delivery of their medical history, I may observe previously unreported symptoms or inconsistencies with records I have reviewed and collateral sources of information. In some cases, I evaluate malingering based on my observation of the examinee.
An example of behavioral cues could be if a person cries while describing certain symptoms, or is unwilling to elaborate about a medical condition.
These are not necessarily signs of lying or truth-telling. For example, they may reveal symptoms such as lability (crying easily) which is associated with Depression. If the records do not identify a diagnosis of Depression, the IME has raised questions about what is in the records that I may wish to pursue.
Medically Informative. Not Medical Records.
Examples: Legal records and/or Collateral Interviews
Legal Records
Police reports, depositions, disclosed expert reports, documents produced during discovery are all examples of legal documents which might be relevant as I develop the medical history of a given evaluee.
Discovery
For example, I have been asked to review deposition testimony of a doctor. Their testimony would be expected to reflect their own medical notes. A deviation is noteworthy.
A doctor may testify about treatment provided by them, or a different doctor, but which is not otherwise in the records. This presents me with another possible avenue to explore.
The report of another disclosed expert witness in my field is a legal document which I would review. I am interested in their medical-legal findings and the records and information on which they base those conclusions.
The report from court-ordered neuropsychological testing is yet another piece of the medical and legal record and the medical history of the evaluee.
Personnel Records
Personnel records are not pleadings, are not governed under rules of civil procedure though they may be discoverable in employment or other civil litigation. They could, however, appear in a legal matter and presented to me for review.
In Worker’s Compensation cases or workplace civil litigation, performance reviews or coworker complaints could document symptoms. A review of a personnel file can be medically revelatory.
For example, a person becomes unable to perform their job due to a change in cognitive abilities, or whose behavior has altered noticeably.
They may appear depressed at work or erratic in their interractions. These are medical clues contained in a non-medical record.
Collateral Informants and Information.
Collateral Informants
Collateral information derives from “family, friends, caregivers or anyone in the orbit of the examinee during the period in focus” as listed above. This is in the service of gathering information to determine a medical history or medical “picture” of the evaluee.
Information
I may also be asked to review other types of collateral information such as sub rosa video or, perhaps, family videos showing the cognition of a person at a given point in time.
Legal Records
Police reports, depositions, disclosed expert reports, documents produced during discovery are all examples of legal documents which might be relevant as I develop the medical history of a given evaluee.
For example, I have been asked to review deposition testimony of a doctor. Their testimony would be expected to reflect their own medical notes. A deviation is noteworthy.
A doctor may testify about treatment provided by them, or a different doctor, but which is not otherwise in the records. This presents me with another possible avenue to explore.
The report of another disclosed expert witness in my field is a legal document which I would review. I am interested in their medical-legal findings and the records and information on which they base those conclusions.
The report from court-ordered neuropsychological testing is yet another piece of the medical and legal record and the medical history of the evaluee.
Personnel Records
In Worker’s Compensation cases or workplace civil litigation, performance reviews or coworker complaints could document symptoms. A review of a personnel file can be medically revelatory.
For example, a person becomes unable to perform their job due to a change in cognitive abilities, or whose behavior has altered noticeably.
They may appear depressed at work or erratic in their interractions. These are medical clues contained in a non-medical record.
Ancillary Records
Case-Specific Exemplars: Testamentary Capacity, Standard of Care of the Elderly
Exemplars: Nursing Homes and Assisted Living
Medical-Legal Considerations Unique to Facilities Where the Elderly Receive Care
The bulk of this article focuses on records and sources of medical information that might apply to any person who is a party to a lawsuit, regardless of age.
Assessing an evaluee with age-related medical complications raises the question of a need for records in the institutions where the elderly receive medical treatment or live if is affiliated with their needs due to aging.
Nursing Home Care
A nursing home provides care for medically vulnerable patients and is often the next stop after hospitalization. They can be a transition until they can better care for themselves at which point they will be discharged perhaps to return home or have an in-home caregiver or other post operative or post hospitalization treatment and recovery plan.
Nursing homes serve patients who require around-the-clock supervision including long-term care. They are not residential facilities. Nursing homes are medical facilities, and as such tend to keep chart notes similar to those kept by a hospital, though the degree and frequency of note taking can reflect that the scope of care in a nursing home differs.
Residential
Assisted Living Facilities are residential and do not always provide medical care, though some administer prescription medication and have a nurse on staff.
Assisted Living facility records are relevent to me if the evaluee lives there because they need more support than living alone at home and if the environment impacts their mental health to the extent the questions posed to me by counsel.
Standard of Care
Nursing Home or Assisted Living facility records would of course be important in allegations of negligence or breach of standard of care.
Socialization and Mental Health
Missing from medical records could be non-medical collateral information I can obtain from interviewing a facility staff person who is a caregiver close to the evaluee.
Living conditions can also have medical and mental consequences, positive and negative. If negligence is alleged, I might want to review information that is not specifically in the files about an evaluee, but is available in other documents about the facility itself.
Isolation is a known risk factor for depression, thus it could be relevant to know the ratio of residents to staff. What are the qualifications and training of staff? How often during a day does a resident have human interaction?
I would want to know if the evaluee is bedridden or mobile and the extent to which they can and do spend time with others. For example, does the evaluee regularly get out of bed, attend meals with others outside of their room, and participate in activities and conversation?
Records may not be medical in nature. However, if care impacts the health of an examinee positively or negatively, then I might find such records helpful.
Audio, Video, Photographs, Media
Whether or not I am asked to review media is case-specific The media itself could be generated in any number of contexts such that this large topic is outside the scope of this article.
Summary
A Person’s Medical History is Not Bound to Medical Records Alone
The examples in this article are not overarching but meant to serve as examples. A “medical records review” is not necessarily the only source of medical information. A Forensic Psychiatrist is trained to consider varied information as it applies to medical and legal questions.
Endnotes
[1] Expert Witnesses issue findings based on what they are given by the attorney or party who has asked for their opinions. Not all experts are necessarily given the same records. Findings are not always “apples to apples.” I may be asked to read the report of the opposing counsel’s psychiatrist or psychologist expert witness. If I observe their material findings relied on records they received but I did not, it could open a line of questioning that challenges my opinions and vice versa. During an IME, the evaluee may give the other expert a different narrative or medical history than I received. In that case, I would consider the examinee’s memory, presentation and mental status (e.g., confused about their medical conditions,) malingering, or concerns I may have about the inconsistencies.
[2] American Psychiatric Association. (2022). Diagnostic and statistical manual of mental disorders (5th ed., text rev.). https://doi.org/10.1176/appi.books.9780890425787
[3] There are 10 types of Personality Disorders in the DSM5TR. A Personality Disorder can drive behavior that ends up in court. It is not the same as a psychiatric condition like Major Depressive Disorder. The distinctions and legal implications are significant.
[4] American Medical Association (2016, June 1). American Medical Association Code of Medical Ethics. Patient Rights. Chapter 1, Opinion 1.1.3 Retrieved June 30, 2023, from https://code-medical-ethics.ama-assn.org/ethics-opinions/patient-rights.
[5] Glancy GD, Ash P, Bath EP, et al.. AAPL Practice Guideline for the Forensic Assessment. J Am Acad Psychiatry Law. 2015 Jun; 43(2 Suppl):S8 Epub 2015 Jun 8. PMID: 26054704.
[6] American Social of Clinical Psychopharmacology. What is Psychopharmacology? Retrieved July 3, 2023, from https://ascpp.org/resources/information-for-patients/what-is-psychopharmacology/
[7] Controlled Substances: The DEA classifies controlled substances as being Schedule I-V with Schedule I having the highest risk of addiction, and Schedule V the lowest.
[8] The forensically-trained psychiatrist is equipped with skills and experience uniquely suited to mining the medical record objectively for subtle and/or not-so-subtle, details. These skills are acquired through a minimum of 9 years of training. A Board-Certified Forensic Psychiatrist has completed 4 years of medical school, 4 years of residency and one year of dedicated Fellowship in Forensic Psychiatry, passing licensing and Board examinations along the way. (Dr. Quimson-Guevarra’s credentials.)
[9] Op Cit. (Glancy, et al.)
She renders medical opinions in legal matters and treats patients in private practice.
Dr. Quimson-Guevarra understands the struggle to litigate a case, as counsel for plaintiff or defense, where medical information of any kind is a factor and requires a physician’s understanding.
Dr. Quimson-Guevarra wrote this article to clarify what constitutes a Medical History, and the importance of a thorough examination.
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