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Danger Lurks in your medical records.

One of the linchpins of the guardianship machine resides at the intersection between medicine and law. 

It is impossible to overemphasize the importance of accurate, clear and concise medical records that may be presented to the court for consideration of removal of an individual’s rights.  Even the entry of a single word into the record particularly in the diagnosis section, like dementia or Alzheimer’s or even depression can be the reason to push the start button on an unnecessary guardianship.

It’s critical to understand that the term incapacity is nowhere to be found in medicine.  It is not a medical term.  It is a legal term.  And like so many legal terms its definition is so fluid and plastic that even the slightest hint of some sort of cognitive deficiency can be construed by the judge as evidence enough to create a guardianship.  Incapacity can be something as simple as getting lost occasionally or forgetting your keys repeatedly depending on how the judge wants to rule.  It can be very obvious such as a persistent vegetative state, or it can be very subtle like postsurgical delirium which usually clears up in a short time.

Medical records are critically important in molding the opinion of the judge, but they can be manipulated, they can be misleading, they can be sloppy and illegible and in the age of the “garbage in garbage out” electronic medical record they can be downright wrong.  These days doctors don’t get paid unless a know how to use codes referred to as ICD 10 as well as other codes known as CPT.  The diagnosis codes in the ICD 10 must matchup with the procedure codes on the CPT for claims to be paid promptly.  To maximize reimbursement doctors typically rely on coders whose job it is to match those sets of codes properly to get the most money for each encounter.  These coders never see patients and may not even understand what their coding does and are trained to utilize the codes that derive the greatest reimbursement and so are the doctors themselves. No one ever does a clinical review of their work.

So is the informed family member or potential ward, it is critical to understand that the vast majority of physicians had no idea how impactful their casual remarks in a medical record can be.  Even a single entry that contains the word “dementia” or Alzheimer’s can be the key that opens the door to a guardianship.

In the event that your loved one or even yourself is targeted, and preferably long before that happens one of the very things you must do is have a discussion with your doctor.  Inform the doctor of your concern about any terms that could lead to a guardianship being included in the medical record, and in particular words like dementia and Alzheimer’s.  There are multiple other ways to describe symptoms or diagnosis of any kind of cognitive decline.  For example, a person who has become forgetful might be diagnosed as having mild memory impairment.   

 Better than a damning and lethal diagnosis, symptoms can be used to describe a patient’s status like age appropriate mild cognitive decline, or mild short term memory impairment, or mild intermittent disorientation, medication induced iatrogenic confusion.

Unfortunately in many instances by the time issue becomes urgent medical record has been long ago inscribed.  If there are adverse terms within the medical record is not too late.  A letter, on the doctors letterhead, from the physician who made the medical notes can go a long way to lessening their negative impact.  Here’s an example:

To whom this may concern:

 My patient, Jane Doe has been under my ongoing care.  In the course of her care, certain generic medical terms may have been included in her record, including the term ___________. My use of that/those terms in describing her condition at any point in time should not be construed to imply or convey an opinion with regard to my patient’s legal capacity or incapacity.  Incapacity is a legal term not a medical term and I am not an expert in matters of legal capacity.  

Consequently, it would be inappropriate to consider entries in the medical record as probative or even suggestive of any level of legal incapacity.  I do not now consider nor have I ever considered my patient to be a danger to herself or others.  Had that concern in present, appropriate actions would have been undertaken.