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The Medico-Legal Report in Emergency Medicine

Simon Young and David Wells
Emergency Medicine 1995:7;233.

Abstract

The preparation of a medico-legal report is an exercise in communication between the doctors and the legal system. A proper request and informed consent are essential prior to commencing report preparation. A structured format incorporating elements of background information, medical history, physical examination, specimens obtained, treatment provided and opinion is suggested.

Introduction

The medico-legal report is a structured and formal vehicle for communication between the doctors and the legal system. Requests for medico-legal reports are common and originate from a variety of sources such as police, lawyers, government tribunals, insurance companies or the patients themselves. Once prepared they may be used in criminal or civil proceedings with consequences for the patient, the doctor, third parties and the judicial system In view of these potential implications they must be prepared with accuracy, diligence and an understanding of basic legal principles. Although usually prepared for a specific person, the report may become a public document and be used by a diverse non-medical audience. Clarity of communication and economy of scale are vital to maximise its effectiveness.

The request

The circumstances surrounding many emergency department attendances especially those involving violence considerably increase the likelihood of a request for a medico-legal report. The request should be directed specifically to the most senior doctor who was involved with the clinical management of the patient. Whilst it is possible to direct the request to any person involved or to someone who may only compile a report from the medical notes, this is less satisfactory. If the latter occurs there will always be uncertainty as to why the senior treating doctor was not asked, implying them may be something to conceal.

The request should specifically state:

1. Who should write the report,
2. The name and preferably the date of birth of the patient concerned;
3. The time and date of any incident;
4. The purpose of the report;
5. Any specific issues that need to be addressed. The request should be accompanied by a signed statement of consent completed by the patient or legal guardian, allowing release of medical information.

Consent

Consent for the release of medical information to a third party must be obtained prior to a medico-legal report being dispatched. It is recommended that consent is obtained prior to a report being prepared to prevent inadvertent release without consent.

The following criteria must be met for consent to be valid:

1. The subject (or their legal guardian) must be competent to provide it;
2. It must be informed. That is, the subject must have a clear understanding of the implications of the release of the information;
3. It must be specific;
4. It must be freely given. Release of privileged medical information in a medico-legal report without valid consent is unethical and may be illegal. In situations where a medico-legal report is requested but consent is withheld, the requesting agency may apply for a court order for release of the material.

Format

There are many formats for a medico-legal report. Style may be directed either by the personal preference of the author or by the requirements of the legal process or the requesting agency.

Within these boundaries them are some common features which include:

1. The date on which the report was prepared;
2. The name of the person to whom the report is directed;
3. The full name, date of birth and hospital unit record number of the subject. The subject's address should not usually be included as the document may become public. This has the potential to cause problems for the subject.
4. Identification of the author: This should include the practitioner's full name, practising address, current employment and qualifications. It may also be appropriate to include details of precious relevant employment, appointments, publications and memberships.
5. JuratThis is a certification of the veracity and authorship of the report. Different formats are required in different jurisdictions. It has to be sworn or the statement witnessed before an authorised officer.Factual content

The report must primarily be prepared from the original notes. There should be no factual information that is unsupported by data contained in these notes. Clearly this places an onus on the doctor to create precise and comprehensive notes during or immediately after the initial examination. Ideally, reports should be prepared as soon as possible after the examination The terminology used should be appropriate to the potential audience. Medical terms not in common usage should be avoided or alternatively should be adequately explained. For example nose bleed is preferable to epistaxis and pin point bruising preferable to petechiae. The use of the words 'victim' or 'offender' or 'rape' presuppose that an offence has occurred and should not be used. Ideally, assaults and other offences should be referred to as "alleged offences". The content of each report will vary as it is dependent upon the exact circumstances concerning each case. Whilst a degree of flexibility is necessary to encompass all the relevant points, a structured framework is strongly recommended. Such a framework provides a useful aide memoir for the author and will also assist legal practitioners to locate particular points for subsequent commentary or questioning.

A suggested structure is:

Background

Data such as the time, date and place, and the reason for the examination. Detail the nature and extent of your involvement in the case. A brief account of the alleged offence and the sources of that information should also be included. It is often useful to quote verbatim the subject's account of critical issues. A specific comment should be made concerning the provision of consent.

Medical history

A brief account of any relevant medical conditions is appropriate.

Examination

Comments on the general presentation of the subject should be included. Emotional, psychiatric and intellectual state and the effects of alcohol or other drugs should be described. Specific attention should be given to sites of particular interest in the case; for instance the genito-anal examination in a rape case. Relevant negative findings should also be recorded. If there are any difficulties or limitations encountered during the examination (for example limited co-operation by the subject or a withdrawal of consent to examine certain areas), this should be noted.

Specimens

It is uncommon for hospital staff to be required to take forensic specimens. Details of all specimens obtained should appear in the medico-legal report There should be clear notation as to the site from which the specimens derived, the way they were labelled, details of handling and the reason for obtaining that specimen (for example bacteriology for comparison purposes). Comments should also be made regarding the time and date of transfer of specimens to the care of another person. This ensures that continuity of evidence can be proven later in court. The report should refer to any photographs taken and the text should clearly identify each photograph.

Management

It may be appropriate to comment on investigations, procedures and management of the patient. Occasionally, if investigation or treatment is ongoing, a further (supplementary) report may be required.

Opinion

It is advisable to distinguish if possible between fact and opinion. The facts being what was seen or done and the opinion being what was inferred or assumed. In practice this may be difficult. Opinion evidence will often come under particular scrutiny by the reader of the report, and may be publicly tested in court. The authors experience and expertise are fundamental to the weight given by the court to their opinion. Some opinions sought may be beyond the expertise of the author. It is perfectly reasonable to decline to provide a statement in this situation. Under these circumstances, the requesting agency may seek a, opinion from another more experienced practitioner based upon the earlier report. If other persons' statements or scientific articles are used the source must be disclosed. When formulating an opinion it is essential to maintain impartiality and objectivity. Resist fitting opinions to the allegation and acknowledge and weigh alternative conclusions. Only say what you would be prepared to repeat under oath in court.

Putting it all together

Draft reports should be prepared and the contents compared with the original notes. On completion of a final report all draft reports should be destroyed. This prevents any confusion at a court hearing as to what was draft and what was final report. A copy of the final report should be held either with the patient's records, or by the author. On no account should any of the original notes be destroyed and, if they are rewritten, the second version should be acknowledged and kept with the original. Requests to edit reports to remove unfavourable material should never be accepted. The report should provide a balanced and complete account of the consultation. All reports should be typed without alterations.

Finally, whenever possible, ask a colleague to review and comment upon the report before it is sent. It is difficult to alter a report once it has been issued. Constructive criticism at this time is preferable to cross-examination in the witness box. Review of the notes, reports, diagrams and photos should occur before the start of court proceedings. If, at this stage, any mistakes are noted in the report, these should be acknowledged openly in court.

Conclusion

The preparation of a medico-legal report is an essential part of the service provided by hospital doctors. It is a task that should be approached with a desire to accurately communicate the clinical situation encountered. A structured format and objective opinion will enhance both the readability and accuracy of the report.