A. Legal System: General Information
In Kentucky, there are two levels of courts: District and Circuit. District Court is responsible for misdemeanor offenses, emergency protective custody of children, most emergency protective orders, domestic violence orders and related hearings, and cases involving juveniles. The County Attorney is the prosecutor associated with District Court cases. Circuit Court is responsible for hearing felony offenses (usually involving adult defendants) prosecuted by the Commonwealth’s Attorney. Other Circuit Court proceedings include divorce, child custody /visitation cases, and domestic violence protective orders usually when related to pending Circuit Court case).
With the recent amendment of the Kentucky Constitution, the Supreme Court may now designate one or more divisions of Circuit Court within a judicial circuit as a family court division. In addition to maintaining the general jurisdiction of a circuit court to hear cases involving divorce, child custody, visitation, maintenance and support, adoption and termination of parental rights, a family court has jurisdiction to hear domestic violence and abuse proceedings under KRS Chapter 403 subsequent to the issuance of an emergency protective order; proceedings related to paternity and support; dependency, neglect and abuse proceedings; and cases involving juvenile status offenders.
Generally, a physician is most likely to be asked to appear as a witness in a criminal trial in Circuit Court. More often, the medical records will suffice in proceedings. Spouse and partner abuse cases represent the majority of cases which may go to trial, although solid medical and law enforcement documentation can facilitate plea agreements. A small percentage of child abuse and child sexual abuse cases actually come to trial. Even if a physician is subpoenaed, actual testimony may not be necessary. (Bright, K. 1993, University of Kentucky)
While interaction with the legal system can be disconcerting, and may be frustrating or disillusioning for health care professionals, prosecutors and attorneys should be willing to work out ample notice and flexible arrangements. It helps to become familiar with the legal system and the local officials. (Myers, J. et al. Nebraska Law Review 1989
B. Role of the Physician in Court
If called to testify, the physician will generally testify as to the presenting problem/s, assessment findings, treatment provided, patient statements, records and related documentation. There may be issues or questions related to reports and referrals made to protective service agencies, as well as any patient education materials provided.
A physician may be asked to testify as an “expert” witness in a case involving adult or child maltreatment. The physician may be considered an “expert” because of “knowledge, skill, experience, training or education.” KRE 702. Factors which may be used to establish a physician as an expert include: medical training, board certification, years in practice, number of similar patients examined, medical meetings attended, and knowledge of the medical literature. As a court designated expert, the physician will explain “scientific, technical or other specialized knowledge” which will assist the jury (lay persons) “to understand the evidence or determine a fact in the issue.” KRE 702. The physician’s role is to educate the jury, not to decide the guilt or innocence of the accused. SANE nurses may also testify as expert witnesses in sexual assault trials.
Subpoenas. A subpoena is a legal summons to appear in court or produce records. The subpoena should:
- name the case;
- specify the court, date and time the person named is subpoenaed is to appear; OR the record (copy) is to be produced.
| The physician should always respond to a subpoena by calling and talking with the attorney who issued it. It is unwise to appear in the court without having done so. |
Areas of concern which should be addressed:
Content of Testimony. Ascertain what the attorney expects from your testimony. Educate the attorney about what you can, and can not, say in court. Suggest appropriate questions to ask you about the case.
Anticipated Opposition. The attorney should brief you on what to expect in from the opposing lawyer (e.g., evidence, expert testimony, questioning, etc.).
Time of Court Appearance. Make arrangements for the actual time you are to appear in court. Insist that the attorney confirm your time of appearance once the trial is underway. Attorneys will usually allow you to be “on call” to the court to minimize waiting time. However, a plea bargain or continuation may be declared at any time, resulting in a cancellation or postponement of the trial.
Professional Fees. Discuss the fee you charge for time as an expert witness.
C. Court Appearances: Preparation & Testimony
Preparation for your courtroom appearance is important. |
Insist on pretrial preparation in cooperation with the attorney presenting you as a witness. Prior to testifying, you should:
- Review the chart. Be completely familiar with the patient’s medical history and exam results.
- Review and be familiar with the medical literature and opinions that are pertinent to the case.
- Consider discussing the case with another physician who has experience as an expert witness.
Dress comfortably and conservatively when appearing for depositions and in court.
Courtroom Testimony: Helpful Hints
Try to appear relaxed.
Be clear. Articulate. Be as specific as possible in your testimony.
Make frequent eye contact with the jury.
Use visual aids (e.g., photographs, Body Injury Maps, drawings, etc.).
Explain medical terms/concepts to the jury in everyday terms. Avoid professional jargon.
Be sure you understand each question before you try to answer.
Request clarification of multi-part or confusing questions.
Do not volunteer information.
If you don’t know, don’t guess. It is OK to say, “I don’t know.”
If an attorney tries to use medical papers or texts to discredit your testimony, ask to read the material before you respond to the challenge.
Control your feelings when challenged. Don’t respond with anger or hostility.
Calmly correct an attorney who misstates prior testimony.
D. Authority for Investigative Access to Health Care Facilities, Private Premises, & Medical Records/Information
Any health care facility or health service licensed by the Cabinet for Health and Family Services (formerly Cabinet for Families and Children) should establish policy to allow access to the facility at any reasonable time by any representative of the Department for Community Based Services (DCBS) for the purpose of carrying out their mandated investigative responsibilities. The law provides for DCBS to receive: agency records, cooperation, assistance and information from agencies providing services to the alleged adult or child victim. Investigative access also includes the mental and/or physical health records of the alleged victim that are in the possession of any individual, hospital, or other facility. KRS 209.030; 620.030.
Other authorities who have access to health care facilities and medical records relative to conducting an investigation (alleged adult or child abuse, neglect or exploitation; Medicaid or Medicare fraud) include: law enforcement agencies; Medicaid Fraud and Abuse Control Division (Office of the Attorney General); Long Term Care Ombudsman (Cabinet for Health and Family Services); U.S. Department of Health and Human Services.
Failure to grant the Medicaid Fraud and Abuse Control Division immediate access to clinical records maintained concerning Medicaid patients or on any patient who may be a victim of physical abuse or neglect, or billing information related to these patients may result in the provider’s exclusion from further participation in the Medicaid Program and/or a violation of the provider’s agreement of the provider’s manual.
Adult victims and parents/guardians of child victims (where appropriate) should be advised they may have access to copies of their medical records to assist them in either civil or criminal proceedings. Policy should specify provisions for obtaining these copies. They also need to know that safeguards, for investigations and for personal privacy, virtually seal off all information until a trial is held or a final ruling of the court is made public.
The custodian of the records may also receive court subpoenas for the mental and physical health records of the patient for evidence submission during court proceedings. Certified copies of medical records are submitted to the court and a personal appearance by the custodian of the records is usually unnecessary.
Patient Bill of Rights: Hospitals & Long-Term Care Facilities.
ll employees of hospitals and Long-Term Care Facilities should be aware of the patient rights as established by the American Hospital Association (840 North Lake Shore, Chicago, IL 60611.) Additionally, Kentucky statute specifies minimum rights for residents of long-term care facilities; and action by residents for deprivation or infringement of rights. KRS 216.515;216.520.
E. Reporting from Substance Abuse Programs
In response to a request to the Legal Action Center for clarification regarding federal rules of confidentiality and state mandate for the reporting of adult abuse, neglect and exploitation from substance abuse programs, it was determined that the following six (6) procedures meet both federal and state requirements:
- Encourage the alcohol or drug abuser who is concurrently an alleged victim or perpetrator of abuse or neglect to self report.
- Encourage the alcohol or drug abuser who is concurrently an alleged victim or perpetrator of abuse or neglect to sign a Release of Information form. This form would give written consent for the counselor to contact the Department for Community Based Services to report the suspected or known adult abuse, neglect or exploitation.
- Report the suspected or known adult abuse, neglect, or exploitation without divulging that the person is receiving alcohol or drug abuse treatment services. If the substance abuse program is a sub-component of a larger organization that provides services other than just alcohol or drug abuse, the staff person may use the name of the parent agency when making the report e.g., a general hospital or community mental health center that provides a variety of mental health services.
- Initiate the report as a private citizen rather than as a representative of a chemical dependency treatment program. The source of a report of abuse or neglect is kept confidential unless it is released by a court order. [KRS 209.140]
- Initiate the report anonymously.
- Seek a court order in compliance with federal regulations “Confidentiality of Alcohol and Drug Abuse Patient Records” (42 C.F.R. Part 2) in order to release the information regarding the suspected or known adult abuse, neglect or exploitation.”
“As the federal government ruled and procedures reflect, reports of suspected or known adult abuse can be made but only information that would not identify the patient as receiving alcohol or drug abuse treatment can be disclosed absent the patient’s written consent, a proper court order under Subpart E of the regulations, or a qualified services organization agreement. Thus, absent one of the three forms of authorization listed above, an agency that does work in addition to substance abuse could report under its official name as long as no information about substance abuse or treatment is revealed. Organizations doing only substance abuse work would have to report anonymously since even revealing the name of the program would disclose the nature of the treatment.”
The Legal Action Center opinion also set forth suggestions regarding:
“Perpetrators and Self Reporting: Counselors may want to advise perpetrators of abuse to consult a lawyer before they self report or sign a consent form to allow a program to report abuse.”
“Consent Forms: Particular attention should be paid to the contents of the consent form. The federal regulations require that disclosures made pursuant to a consent form must be limited to information that is necessary to accomplish the need or purpose of the disclosure. [Sect. 2.13(a)] Since the “fact” of adult abuse is the only information necessary to accomplish the need to make the mandated report, the consent form signed by the patient should specify that the information to be disclosed by the treatment program is limited to reporting the abuse. Thus, if the representatives of the Department for Community Based Services want to meet with a treatment counselor or request additional information from a program, the client should sign a second consent form permitting this additional communication.”
“Investigative Access to Records: The Kentucky Adult Protection Act [KRS 209.030(5)] authorized any representative of the DCBS as part of their responsibilities under this statute to enter any health facility or health service licensed by the Cabinet as well as allows access to the mental and physical health records of the adult which are in the possession of any individual, hospital, or other facility. To the extent that provision would mandate disclosures by substance abuse programs covered under the federal confidentiality laws, the federal law overrides that requirement. In that situation, the DCBS would need a consent form, court order under Subpart E of the federal regulations, or qualified services organization agreement before obtaining access to such information.”
“Confidentiality and Family Members: On this issue there exists a difference of opinion between the Legal Action Center and representatives in the Counsel’s Office of the Public Health Division of Health and Human Services. In the opinion of the Legal Action Center, the federal confidentiality laws do protect a spouse or family member who reaches out first for assistance. Therefore, when programs are treating co-dependent spouses or family member, it is the advice of the Legal Action Center that in complying with the mandatory reporting requirements of Kentucky’s child or adult abuse laws, programs should proceed as they do in reporting child or adult abuse committed by the drug abuser him-or-herself.”
“It is the position of representatives in the Counsel’s Office of the Public Health Division of Health and Human Services that the non-drug abusing family member who presents him-or-herself for services is not covered by the regulations. Under their interpretation of the regulations, counselors would not be required to comply with the regulations when reporting child or adult abuse when a non-drug abusing family member is involved.”
“Summarizing this issue, the Legal Action Center’s advice was, to treat the co-dependents and family members so as not to involve any risk, as protected under the regulations. This procedure of treating these patients as protected and following the regulations when reporting child or adult abuse would be the safer course.”
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The opinions cited above were received by the Cabinet for Human Resources, Department for Mental Health and Mental Retardation Services, Division of Substance Abuse (July/November, 1988), from the Legal Action Center, a non-profit public interest organization whose purpose is to provide legal representation and counseling to ex-offenders, former alcohol and drug abusers, and the many programs and agencies which assist in their rehabilitation.
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