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Documenting Domestic Violence Ho


  • pg 1
									U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

National Institute of Justice
                R       e       s       e   a      r     c      h              i     n             B      r      i    e      f
Sarah V. Hart, Director                                                                                                     September 2001

Issues and Findings                         Documenting Domestic Violence:
Discussed in this Brief: A well-
documented medical record can
strengthen domestic violence
                                            How Health Care Providers Can
cases when they are brought to
court. It constitutes third-party,
                                            Help Victims
factual evidence corroborating
                                            by Nancy E. Isaac and V. Pualani Enos
or establishing that abuse has
occurred and may be useful to
pro se litigants in a variety of less       Physicians and other health care                   handwriting may be illegible. These
formal legal contexts. Today the            providers know that often the first thing          flaws can make medical records more
importance of documenting abuse             victims of domestic violence need is               harmful than helpful.
is recognized in many health care           medical attention. They also know they
protocols and training programs.            may have a legal obligation to inform              Health care providers have received little
However, many medical records
                                            the police when they suspect the patient           information about how medical records
contain shortcomings that prevent                                                              can help domestic violence victims take
                                            they are treating has been abused. What
their admissibility as evidence in                                                             legal action against their abusers. They
court and other legal proceedings.
                                            they may not know is that they can help
                                            the patient win her case in court against          often are not aware that admissibility is
Health care providers can improve
                                            the abuser by carefully documenting                affected by subtle differences in the way
the admissibility of evidence and
strengthen the case of domestic             her injuries.1                                     they record the injuries. By making some
violence victims.                                                                              fairly simple changes in documentation,
                                            In the past decade, a great deal has been          physicians and other health care profes-
Key issues: Medical records are             done to improve the way the health care            sionals can dramatically increase the use-
often difficult to obtain, incom-           community responds to domestic vio-                fulness of the information they record
plete, or inaccurate, and the hand-         lence. One way that effort has paid off            and thereby help their patients obtain
written notes are often illegible.
                                            is in medical documentation of abuse.              the legal remedies they seek.
Health care providers are often
                                            Many health care protocols and training
confused about whether and how
to record information useful in
                                            programs now note the importance of                Why thorough documentation
legal proceedings. They also may            such documentation. But only if medical            is essential
be reluctant to testify in court,           documentation is accurate and compre-
                                            hensive can it serve as objective, third-          The victim’s attorney, or the victim acting
concerned about confidentiality
and liability, and uncertain which          party evidence useful in legal proceedings.        on her own behalf as a pro se litigant,
statements might inadvertently                                                                 can submit medical documentation as
harm the victim. Out-of-court               For a number of reasons, documentation             evidence for obtaining a range of protec-
statements are not admitted as              is not as strong as it could be in provid-         tive relief (such as a restraining order).
evidence, but some States allow             ing evidence, so medical records are               Victims can also use medical documenta-
parts of the medical records relat-         not used in legal proceedings to the               tion in less formal legal contexts to sup-
ed to diagnosis and treatment to            extent they could be. In addition to               port their assertions of abuse. Persuasive,
be admitted without requiring that          being difficult to obtain, the records are         factual information may qualify them for
the physician testify. This makes it
                                            often incomplete or inaccurate and the             special status or exemptions in obtaining
even more important for records
to be comprehensive, specific,
and legible. A victim’s excited or              Support for this research was provided through a transfer of funds to NIJ from the Violence
                                                Against Women Office, Office of Justice Programs, U.S. Department of Justice.
                             R     e   s    e    a     r   c    h         i   n           B     r    i   e    f

Issues and Findings                        public housing, welfare, health and life           how, and why to record information about
                       …continued          insurance, victim compensation, and                domestic violence, so in an effort to be
                                           immigration relief related to domestic             “neutral,” some use language that may
spontaneous utterances, which
                                           violence and in resolving landlord-tenant          subvert the patient’s legal case and even
the court assumes could not
be feigned, may also be admissi-
                                           disputes.                                          support the abuser’s case.
ble, making it essential to record
                                           For formal legal proceedings, the docu-            Some health care providers are afraid to
them accurately. The shortcom-
ings of medical records and how
                                           mentation needs to be strong enough to             testify in court. They may see the risks
health care providers can improve          be admissible in a court of law.2 Typically,       to the patient and themselves as possibly
them were revealed in a study              the only third-party evidence available            outweighing the benefits of documenting
of 184 visits for medical services         to victims of domestic violence is police          abuse. Even health care providers who
in which there was a suggestion            reports, but these can vary in quality and         are reluctant to testify can still submit
of domestic violence.                      completeness. Medical documentation                medical evidence. Although the hearsay
                                           can corroborate police data. It constitutes        rule prohibits out-of-court statements, an
Key findings: The study found
                                           unbiased, factual information recorded             exception permits testimony about diag-
that although health care pro-
viders described the patients’
                                           shortly after the abuse occurs, when               nosis and treatment. In addition, some
injuries in detail, photographs            recall is easier.                                  States also allow the diagnosis and treat-
were taken in only a few cases                                                                ment elements of a certified medical
involving physical injury. Body
                                           Medical records can contain a variety of           record to be entered into the evidentiary
maps—drawings of the human                 information useful in legal proceedings.           record without the testimony of a health
figure on which physicians mark            Photographs taken in the course of the             care provider. Thus, in some instances,
injuries or other medical prob-            examination record images of injuries              physicians and other health care pro-
lems—were also used in only a              that might fade by the time legal pro-             viders can be spared the burden of
few cases. In one-third of the vis-        ceedings begin, and they capture the               appearing in court.
its in which abuse or injury was           moment in a way that no verbal descrip-
noted, key parts of the records            tion can convey. Body maps3 (see exhibit,          The patient’s “excited utterances” or
contained illegible writing. In only       p. 3) can document the extent and loca-            “spontaneous exclamations” about the
a small percentage of cases were
                                           tion of injuries. The records may also             incident are another exception to the pro-
all factors for using the patient’s
spontaneous utterances as evi-
                                           hold information about the emotional               hibition of hearsay. These are statements
dence considered.                          impact of the abuse. However, the way              made by someone during or soon after
                                           the information is recorded can affect its         an event, while in an agitated state of
Health care providers can improve          admissibility. For instance, a statement           mind. They have exceptional credibility
recordkeeping in a number of               about the injury in which the patient is           because of their proximity in time to the
ways, such as by documenting               clearly identified as the source of infor-         event and because they are not likely to
factual information rather than
                                           mation is more likely to be accepted as            be premeditated.
making conclusory or summary
                                           evidence in legal proceedings. Even poor
statements; photographing the                                                                 Excited utterances are valuable because
injuries; noting the patient’s
                                           handwriting on written records can affect
                                           their admissibility.                               they allow the prosecution to proceed
demeanor; clearly indicating the
                                                                                              even if the victim is unwilling to testify.
patient’s statements as her own;
                                                                                              These statements need to be carefully
avoiding terms that imply doubt            Overcoming barriers to
about the patient’s reliability;                                                              documented. A patient’s report may be
                                           good documentation
refraining from using legal terms;                                                            admissible if the record demonstrates
recording the time of day the              There are several reasons medical                  that the patient made the statement while
patient was examined; and writ-            recordkeeping is not generally adequate.           responding to the event stimulating the
ing legibly.                               Health care providers are concerned                utterance (the act or acts of abuse).
                                           about confidentiality and liability. They          Noting the time between the event and
Target audience: Health care
                                           are concerned about recording informa-             the time the statements were made or
providers and researchers, espe-
cially those who deal with domes-
                                           tion that might inadvertently harm the             describing the patient’s demeanor as she
tic violence; organizations focused        victim. Many are confused about whether,
on domestic violence; legal pro-
fessionals, including judges and
prosecutors; and law enforcement
professionals.                                                      2
                             R     e      s   e     a      r    c     h          i    n         B   r    i   e    f

made the statement can help show                   q    For the 93 instances of an injury,          q   All three criteria for considering
she was responding to the stimulating                   the records contained only 1 photo-             a patient’s words an excited
event. Such a showing is necessary to                   graph. There was no mention in                  utterance were met in only 28 of
establish that a statement is an excit-                 any records of photographs filed                the more than 800 statements
ed utterance or spontaneous exclama-                    elsewhere (for example, with the                evaluated (3.4%). Most frequently
tion, and thus an exception to the                      police).                                        missing was a description of the
hearsay rule.4                                                                                          patient’s demeanor, and often the
                                                   q    A body map documenting the
                                                                                                        patient was not clearly identified
                                                        injury was included in only 3 of
What the records lack                                                                                   as the source of the information.
                                                        the 93 instances. Drawings of the
It appears that at present, many med-                   injuries appeared in 8 of the 93            On the plus side, although photo-
ical records are not sufficiently well-                 instances.                                  graphs and body maps documenting
documented to provide adequate legal                                                                injuries were rare, injuries were
                                                   q    Doctors’ and nurses’ handwriting
evidence of domestic violence. A                                                                    otherwise described in detail. And
                                                        was illegible in key portions of the
study of 184 visits for medical care in                                                             in fewer than 1 percent of the visits
                                                        records in one-third of the patients’
which an injury or other evidence of                                                                were negative comments made about
                                                        visits in which abuse or injury
abuse was noted revealed major short-                                                               the patient’s appearance, manner,
                                                        was noted.
comings in the records:                                                                             or motive for stating that abuse had
                                                                                                    occurred. (The study method is de-
                                                                                                    scribed in “Assessing the Medical
 Example of an injury location chart (or “body map”)                                                Records,” page 4.)

 Indicate, with an arrow from the description to the body image, where any injury
 was observed. Indicate the number of injuries of each type in the space provided.
                                                                                                    What health care providers
 Mark and describe all bruises, scratches, lacerations, bite marks, etc.                            can do
                                                                                                    Medical records could be much more
                            Encounters:                                                             useful to domestic violence victims
                            Cuts _____            Punctures _____                                   in legal proceedings if some minor
                            Bites _____           Abrasions _____
                                                                                                    changes were made in documentation.
                                                                                                    Clinicians can do the following:
                            Bruises _____         Bleeding ______
                            Burns _____           Dislocations ___                                  q   Take photographs of injuries known
                                                                                                        or suspected to have resulted from
                            Bone fractures _____________
                                                                                                        domestic violence.
                                                                                                    q   Write legibly. Computers can
                                                                                                        also help overcome the common
                                                                                                        problem of illegible handwriting.
                                                                                                    q   Set off the patient’s own words in
                                                                                                        quotation marks or use such phrases
                                                                                                        as “patient states” or “patient re-
                                                                                                        ports” to indicate that the informa-
                                                                                                        tion recorded reflects the patient’s
                                                                                                        words. To write “patient was kicked
                                                                                                        in abdomen” obscures the identity
                                                                                                        of the speaker.
 Source: Adapted from Improving the Health Care Response to Domestic Violence: A Resource
                                                                                                    q   Avoid such phrases as “patient
 Manual for Health Care Providers, by Carole Warshaw, Anne L. Ganley, and Patricia R. Salter,
 San Francisco: The Family Violence Prevention Fund, 1995. Used with permission of the Family           claims” or “patient alleges,” which
 Violence Prevention Fund.                                                                              imply doubt about the patient’s
                                                                                                        reliability. If the clinician’s

                           R      e     s    e      a     r    c     h          i    n            B   r    i   e    f

observations conflict with the                     q    Use medical terms and avoid legal             q   Describe the person who hurt the
patient’s statements, the clinician                     terms such as “alleged perpetrator,”              patient by using quotation marks to
should record the reason for the                        “assailant,” and “assault.”                       set off the statement. The clinician
difference.                                                                                               would write, for example: The
                                                                                                          patient stated, “My boyfriend kicked
                                                                                                          and punched me.”
                                                                                                      q   Avoid summarizing a patient’s
         Assessing the Medical Records

  T     o find out whether the quality
of medical records is good enough
                                                   A team of medical professionals, social
                                                   workers, attorneys, judges, and research-
                                                                                                          report of abuse in conclusive terms.
                                                                                                          If such language as “patient is a
                                                                                                          battered woman,” “assault and
                                                                                                          battery,” or “rape” lacks sufficient
to be useful in legal proceedings,                 ers analyzed the records of all 772 visits,
researchers examined the charts of                 extracting those in which evidence of                  accompanying factual information,
almost 100 domestic violence victims.a             domestic violence was suggested. From                  it is inadmissible.
The records came from two sources.                 the total, 184 visits (24 percent) were
                                                                                                      q   Do not place the term “domestic
One was a Boston-area legal advocacy               selected for indepth study because the
                                                                                                          violence” or abbreviations such as
program, which in the course of offer-             medical records contained one or more
ing legal assistance to domestic violence          indicators of abuse: a completed screen
                                                                                                          “DV” in the diagnosis section of
victims often consults their medical               for domestic violence, mention of domes-               the medical record. Such terms
records. The other sources were two                tic violence, referral to domestic violence            do not convey factual information
Boston-area hospitals.                             services, notation of problems with an                 and are not medical terminology.
                                                   intimate relationship, or indication of an             Whether domestic violence has
The documentation came from physi-                 injury of any type. (See exhibit A.)                   occurred is determined by the
cians, nurses, social workers, psych-
iatrists, and emergency medical
                                                   a. All appropriate steps were taken to pre-
technicians. In all, 96 medical charts             serve the confidentiality of the individuals       q   Describe the patient’s demeanor,
for 86 women—who made 772 visits                   participating in the study and to adhere to            indicating, for example, whether she
to obtain care of various kinds (emer-             regulations found in 28 CFR 46 Protection of           is crying or shaking or seems angry,
gency, primary, specialty, obstetric/              Human Subjects.                                        agitated, upset, calm, or happy.
gynecological, or other)—were exam-
                                                                                                          Even if the patient’s demeanor
ined. The visits were recent: Most were
made in 1997 or later.
                                                                                                          belies the evidence of abuse, the
                                                                                                          clinician’s observations of that
Exhibit A. Reasons for including incident in the medical records analysis                                 demeanor should be recorded.

Reason for                              Number of                       Percentage of                 q   Record the time of day the patient
Inclusion                             Visits for Care*                Records Analyzed                    is examined and, if possible, indi-
Injury noted in record                        93                              50.5                        cate how much time has elapsed
                                                                                                          since the abuse occurred. For ex-
Domestic violence noted
in record                                     59                              32.1                        ample, the clinician might write,
                                                                                                          Patient states that early this morn-
Problems with intimate
relationship noted in record                  46                              25.0
                                                                                                          ing his boyfriend hit him.

Domestic violence screen                                                                              Model protocol under
completed                                     41                              22.3
Referral made to domestic
violence services                             23                              12.5                    Increasing the number of medical
                                                                                                      charts that contain information useful
* The total adds to more than the 184 visits because in some instances the medical record met
more than one criterion for review.
                                                                                                      in legal settings is the goal of a fol-
                                                                                                      lowup study now under way. Professor

                          R    e     s     e    a    r     c     h          i    n          B    r     i    e     f

V. Pualani Enos is developing a pro-           Notes                                             4. The rules of evidence adopted in most States
                                                                                                 include this exception to the general rule that
tocol that seeks to improve the way
                                               1. Although men as well as women are victims      statements made outside the courtroom are
domestic violence is documented.               of domestic violence, terms referencing women     inadmissable. The exception is premised on
Developing training for practitioners          are most often used in this report because        the notion that if a speaker makes a statement
is a major part of this NIJ-sponsored          women are more frequently injured, in hetero-     while responding to an exciting or emotionally
study. Design of the training will             sexual relationships.                             charged experience, that substantially reduces
                                                                                                 the likelihood that the speaker had time to
draw on input from practitioners,              2. The evidentiary laws of each State define      fabricate the statement. This makes the state-
researchers, and domestic violence             the scope and degree of use of medical records    ment more reliable.
survivors. An evaluation will docu-            in legal proceedings.
ment the new protocol and compare              3. A “body map” is a drawing of the human
medical records before and after the           figure used by physicians. In domestic violence       Nancy E. Isaac, Sc.D., is Senior
protocol is adopted.                           protocols, body maps are used to mark the             Research Scientist with the Harvard
                                               locations, size, and age of injuries observed         Injury Control Research Center,
                                               during a medical examination.                         Harvard School of Public Health.
                                                                                                     V. Pualani Enos, J.D., is Assistant
                                                                                                     Clinical Professor, Northeastern
                                                                                                     University School of Law, Domestic
                                                                                                     Violence Institute. The study was
         Additional Information and Resources                                                        supported by NIJ grant

   T      he full report of the study
  summarized here is on the Web site
                                               q  Massachusetts Medical Society Semi-
                                               nar Series on Domestic Violence. This

  of the Domestic Violence Institute,          series of four interactive educational            Findings and conclusions of the research
  Northeastern University School of Law:       seminars—available on slides, video,              reported here are those of the authors and do
  http://www.dvi.neu.edu/ers/med_doc.          and CD-ROM—is intended to improve                 not necessarily reflect the official position or
                                                                                                 policies of the U.S. Department of Justice.
                                               physicians’ ability to screen and care for
  The Web site of the Domestic Violence        patients at risk for domestic violence.
  Institute, Northeastern University           Information is at the Society’s Web site:
  (http://www.dvi.neu.edu/default.htm),                                                              The National Institute of Justice is a
  has additional information, including                                                              component of the Office of Justice
                                               dv_curriculum.asp.                                    Programs, which also includes the Bureau
  information about the collaboration
                                                                                                     of Justice Assistance, the Bureau of Justice
  between the Institute and the Boston         q  Following up the study described                   Statistics, the Office of Juvenile Justice and
  Medical Center Domestic Violence             here, V. Pualani Enos is developing a                 Delinquency Prevention, and the Office for
  Project.                                     protocol to improve the documentation                 Victims of Crime.
                                               of domestic violence in health care set-
  q  American Medical Association,             tings. (The study is supported by NIJ
  Diagnostic and Treatment Guidelines          grant 2000–WT–VX–0014.) The report                This and other NIJ publications can be
  on Domestic Violence, Chicago: AMA,          of the study is expected in 2003.                 found at and downloaded from the NIJ
  1992. 19 pages. Ordering informa-
                                                                                                 Web site (http://www.ojp.usdoj.gov/nij).
  tion is on the AMA Web site: http://
                                                                                                 NCJ 188564

                                R   e   s   e     a    r    c    h        i   n        B      r   i   e    f

           Recent Publications on Violence Against Women and Related
             Issues From the National Institute of Justice, the Bureau
              of Justice Statistics, and the Office for Victims of Crime
    q   Sexual Assault Nurse Examiner (SANE) Programs: Improving the Community Response to Sexual Assault Victims. Kristin
        Littel. Bulletin. NCJ 186366. Washington, DC: U.S. Department of Justice, Office for Victims of Crime, April 2001.
        Available electronically at http://www.ojp.usdoj.gov/ovc/publications/bulletins/sane_4_2001/186366.pdf.
    q   Sexual Victimization of College Women. Bonnie S. Fisher, Francis T. Cullen, and Michael G. Turner. Research Report.
        NCJ 182369. Washington, DC: National Institute of Justice, Bureau of Justice Statistics, December 2000. Available
        electronically at http://www.ncjrs.org/pdffiles1/nij/182369.pdf.
    q   Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings From the National
        Violence Against Women Survey. Patricia Tjaden and Nancy Thoennes. Research Report. NCJ 183781. Washington, DC:
        U.S. Department of Justice, National Institute of Justice, November 2000. Available electronically at
    q   Extent, Nature, and Consequences of Intimate Partner Violence: Findings From the National Violence Against Women
        Survey. Patricia Tjaden and Nancy Thoennes. Research Report. NCJ 181867. Washington, DC: U.S. Department of
        Justice, National Institute of Justice; and U.S. Department of Health and Human Services, Centers for Disease Control
        and Prevention, July 2000. Available electronically at http://www.ncjrs.org/pdffiles1/nij/181867.pdf.
    q   Intimate Partner Violence. Callie Marie Rennison. BJS Bulletin. NCJ 178247. Washington, DC: U.S. Department of Justice,
        Bureau of Justice Statistics, May 2000. Available electronically at http://www.ojp.usdoj.gov/bjs/pub/pdf/ipv.pdf.
    q   Findings About Partner Violence From the Dunedin Multidisciplinary Health and Development Study. Terri E. Moffitt
        and Avshalom Caspi. Research in Brief. NCJ 170018. Washington, DC: U.S. Department of Justice, National Institute of
        Justice, July 1999. Available electronically at http://www.ncjrs.org/pdffiles1/170018.pdf.

            Use the NCJ numbers to obtain these free publications from the National Criminal Justice Reference Service:

                                                National Criminal Justice Reference Service
                                                               P.O. Box 6000
                                                     Rockville, Maryland 20849–6000
                                                     800–851–3420 or 301–519–5500

U.S. Department of Justice
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