Title: Documenting Domestic Violence: How Health Care Providers Can
Help Victims
Series: Research in Brief
Author: Nancy E. Isaac and V. Pualani Enos
Published: National Institute of Justice, 2001
Subject: Victims of crime: domestic violence
10 pages
22,000 bytes

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U.S. Department of Justice
Office of Justice Programs
National Institute of Justice

National Institute of Justice
Research in Brief
Sarah V. Hart, Director
September 2001

Documenting Domestic Violence: 
How Health Care Providers Can Help Victims 

by Nancy E. Isaac and V. Pualani Enos

Physicians and other health care providers know that often the first thing
victims of domestic violence need is medical attention. They also know
they may have a legal obligation to inform the police when they suspect
the patient they are treating has been abused. What they may not know is
that they can help the patient win her case in court against the abuser by
carefully documenting her injuries.[1]

In the past decade, a great deal has been done to improve the way the
health care community responds to domestic violence. One way that effort
has paid off is in medical documentation of abuse. Many health care
protocols and training programs now note the importance of such
documentation. But only if medical documentation is accurate and
comprehensive can it serve as objective, third- party evidence useful in
legal proceedings. 

For a number of reasons, documentation is not as strong as it could be in
providing evidence, so medical records are not used in legal proceedings
to the extent they could be. In addition to being difficult to obtain, the
records are often incomplete or inaccurate and the handwriting may be
illegible. These flaws can make medical records more harmful than
helpful. 

Health care providers have received little information about how medical
records can help domestic violence victims take legal action against their
abusers. They often are not aware that admissibility is affected by subtle
differences in the way they record the injuries. By making some fairly
simple changes in documentation, physicians and other health care
professionals can dramatically increase the usefulness of the information
they record and thereby help their patients obtain the legal remedies they
seek. 

Why thorough documentation is essential

The victim's attorney, or the victim acting on her own behalf as a pro se
litigant, can submit medical documentation as evidence for obtaining a
range of protective relief (such as a restraining order). Victims can also use
medical documentation in less formal legal contexts to support their
assertions of abuse. Persuasive, factual information may qualify them for
special status or exemptions in obtaining public housing, welfare, health
and life insurance, victim compensation, and immigration relief related to
domestic violence and in resolving landlord-tenant disputes. 

For formal legal proceedings, the documentation needs to be strong
enough to be admissible in a court of law.[2] Typically, the only
third-party evidence available to victims of domestic violence is police
reports, but these can vary in quality and completeness. Medical
documentation can corroborate police data. It constitutes unbiased, factual
information recorded shortly after the abuse occurs, when recall is easier. 

Medical records can contain a variety of information useful in legal
proceedings. Photographs taken in the course of the examination record
images of injuries that might fade by the time legal proceedings begin, and
they capture the moment in a way that no verbal description can convey.
Body maps[3] (see exhibit, p. 3) can document the extent and location of
injuries. The records may also hold information about the emotional
impact of the abuse. However, the way the information is recorded can
affect its admissibility. For instance, a statement about the injury in which
the patient is clearly identified as the source of information is more likely
to be accepted as evidence in legal proceedings. Even poor handwriting on
written records can affect their admissibility. 

Overcoming barriers to good documentation

There are several reasons medical recordkeeping is not generally adequate.
Health care providers are concerned about confidentiality and liability.
They are concerned about recording information that might inadvertently
harm the victim. Many are confused about whether, how, and why to
record information about domestic violence, so in an effort to be "neutral,"
some use language that may subvert the patient's legal case and even
support the abuser's case. 

Some health care providers are afraid to testify in court. They may see the
risks to the patient and themselves as possibly outweighing the benefits of
documenting abuse. Even health care providers who are reluctant to testify
can still submit medical evidence. Although the hearsay rule prohibits
out-of-court statements, an exception permits testimony about diagnosis
and treatment. In addition, some States also allow the diagnosis and
treatment elements of a certified medical record to be entered into the
evidentiary record without the testimony of a health care provider. Thus,
in some instances, physicians and other health care providers can be
spared the burden of appearing in court. 

The patient's "excited utterances" or "spontaneous exclamations" about the
incident are another exception to the prohibition of hearsay. These are
statements made by someone during or soon after an event, while in an
agitated state of mind. They have exceptional credibility because of their
proximity in time to the event and because they are not likely to be
premeditated. 

Excited utterances are valuable because they allow the prosecution to
proceed even if the victim is unwilling to testify. These statements need to
be carefully documented. A patient's report may be admissible if the
record demonstrates that the patient made the statement while responding
to the event stimulating the utterance (the act or acts of abuse). Noting the
time between the event and the time the statements were made or
describing the patient's demeanor as she made the statement can help show
she was responding to the stimulating event. Such a showing is necessary
to establish that a statement is an excited utterance or spontaneous
exclamation, and thus an exception to the hearsay rule.[4]

What the records lack

It appears that at present, many medical records are not sufficiently
well-documented to provide adequate legal evidence of domestic violence.
A study of 184 visits for medical care in which an injury or other evidence
of abuse was noted revealed major shortcomings in the records:

 o For the 93 instances of an injury, the records contained only 1
photograph. There was no mention in any records of photographs filed
elsewhere (for example, with the police). 

 o A body map documenting the injury was included in only 3 of the 93
instances. Drawings of the injuries appeared in 8 of the 93 instances. 

 o Doctors' and nurses' handwriting was illegible in key portions of the
records in one-third of the patients' visits in which abuse or injury was
noted. 

 o All three criteria for considering a patient's words an excited utterance
were met in only 28 of the more than 800 statements evaluated (3.4%).
Most frequently missing was a description of the patient's demeanor, and
often the patient was not clearly identified as the source of the
information.

On the plus side, although photographs and body maps documenting
injuries were rare, injuries were otherwise described in detail. And in
fewer than 1 percent of the visits were negative comments made about the
patient's appearance, manner, or motive for stating that abuse had
occurred. (The study method is described in "Assessing the Medical
Records," page 4.)

What health care providers can do

Medical records could be much more useful to domestic violence victims
in legal proceedings if some minor changes were made in documentation.
Clinicians can do the following: 

 o Take photographs of injuries known or suspected to have resulted from
domestic violence. 

 o Write legibly. Computers can also help overcome the common problem
of illegible handwriting.

 o Set off the patient's own words in quotation marks or use such phrases
as "patient states" or "patient reports" to indicate that the information
recorded reflects the patient's words. To write "patient was kicked in
abdomen" obscures the identity of the speaker.

 o Avoid such phrases as "patient claims" or "patient alleges," which imply
doubt about the patient's reliability. If the clinician's observations conflict
with the patient's statements, the clinician should record the reason for the
difference.

 o Use medical terms and avoid legal terms such as "alleged perpetrator,"
"assailant," and "assault."

 o Describe the person who hurt the patient by using quotation marks to set
off the statement. The clinician would write, for example: The patient
stated, "My boyfriend kicked and punched me." 

 o Avoid summarizing a patient's report of abuse in conclusive terms. If
such language as "patient is a battered woman," "assault and battery," or
"rape" lacks sufficient accompanying factual information, it is
inadmissible. 

 o Do not place the term "domestic violence" or abbreviations such as
"DV" in the diagnosis section of the medical record. Such terms do not
convey factual information and are not medical terminology. Whether
domestic violence has occurred is determined by the court. 

 o Describe the patient's demeanor, indicating, for example, whether she is
crying or shaking or seems angry, agitated, upset, calm, or happy. Even if
the patient's demeanor belies the evidence of abuse, the clinician's
observations of that demeanor should be recorded. 

 o Record the time of day the patient is examined and, if possible, indicate
how much time has elapsed since the abuse occurred. For example, the
clinician might write, Patient states that early this morning his boyfriend
hit him. 

Model protocol under development

Increasing the number of medical charts that contain information useful in
legal settings is the goal of a followup study now under way. Professor V.
Pualani Enos is developing a protocol that seeks to improve the way
domestic violence is documented. Developing training for practitioners is
a major part of this NIJ-sponsored study. Design of the training will draw
on input from practitioners, researchers, and domestic violence survivors.
An evaluation will document the new protocol and compare medical
records before and after the protocol is adopted. 

Notes

1. Although men as well as women are victims of domestic violence,
terms referencing women are most often used in this report because
women are more frequently injured, in heterosexual relationships. 

2. The evidentiary laws of each State define the scope and degree of use of
medical records in legal proceedings. 

3. A "body map" is a drawing of the human figure used by physicians. In
domestic violence protocols, body maps are used to mark the locations,
size, and age of injuries observed during a medical examination. 

4. The rules of evidence adopted in most States include this exception to
the general rule that statements made outside the courtroom are
inadmissable. The exception is premised on the notion that if a speaker
makes a statement while responding to an exciting or emotionally charged
experience, that substantially reduces the likelihood that the speaker had
time to fabricate the statement. This makes the statement more reliable.

------------------------------

Issues and Findings

Discussed in this Brief: A well-documented medical record can strengthen
domestic violence cases when they are brought to court. It constitutes
third-party, factual evidence corroborating or establishing that abuse has
occurred and may be useful to pro se litigants in a variety of less formal
legal contexts. Today the importance of documenting abuse is recognized
in many health care protocols and training programs. However, many
medical records contain shortcomings that prevent their admissibility as
evidence in court and other legal proceedings. Health care providers can
improve the admissibility of evidence and strengthen the case of domestic
violence victims. 

Key issues: Medical records are often difficult to obtain, incomplete, or
inaccurate, and the handwritten notes are often illegible. Health care
providers are often confused about whether and how to record information
useful in legal proceedings. They also may be reluctant to testify in court,
concerned about confidentiality and liability, and uncertain which
statements might inadvertently harm the victim. Out-of-court statements
are not admitted as evidence, but some States allow parts of the medical
records related to diagnosis and treatment to be admitted without requiring
that the physician testify. This makes it even more important for records to
be comprehensive, specific, and legible. A victim's excited or spontaneous
utterances, which the court assumes could not be feigned, may also be
admissible, making it essential to record them accurately. The
shortcomings of medical records and how health care providers can
improve them were revealed in a study of 184 visits for medical services
in which there was a suggestion of domestic violence. 

Key findings: The study found that although health care providers
described the patients' injuries in detail, photographs were taken in only a
few cases involving physical injury. Body maps--drawings of the human
figure on which physicians mark injuries or other medical problems--were
also used in only a few cases. In one-third of the visits in which abuse or
injury was noted, key parts of the records contained illegible writing. In
only a small percentage of cases were all factors for using the patient's
spontaneous utterances as evidence considered. 

Health care providers can improve recordkeeping in a number of ways,
such as by documenting factual information rather than making conclusory
or summary statements; photographing the injuries; noting the patient's
demeanor; clearly indicating the patient's statements as her own; avoiding
terms that imply doubt about the patient's reliability; refraining from using
legal terms; recording the time of day the patient was examined; and
writing legibly. 

Target audience: Health care providers and researchers, especially those
who deal with domestic violence; organizations focused on domestic
violence; legal professionals, including judges and prosecutors; and law
enforcement professionals. 

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Assessing the Medical Records 

To find out whether the quality of medical records is good enough to be
useful in legal proceedings, researchers examined the charts of almost 100
domestic violence victims.[a] The records came from two sources. One
was a Boston-area legal advocacy program, which in the course of offering
legal assistance to domestic violence victims often consults their medical
records. The other sources were two Boston-area hospitals. 

The documentation came from physicians, nurses, social workers,
psychiatrists, and emergency medical technicians. In all, 96 medical charts
for 86 women--who made 772 visits to obtain care of various kinds
(emergency, primary, specialty, obstetric/gynecological, or other)--were
examined. The visits were recent: Most were made in 1997 or later. 

A team of medical professionals, social workers, attorneys, judges, and
researchers analyzed the records of all 772 visits, extracting those in which
evidence of domestic violence was suggested. From the total, 184 visits
(24 percent) were selected for indepth study because the medical records
contained one or more indicators of abuse: a completed screen for
domestic violence, mention of domestic violence, referral to domestic
violence services, notation of problems with an intimate relationship, or
indication of an injury of any type. (See exhibit A.)

a. All appropriate steps were taken to preserve the confidentiality of the
individuals participating in the study and to adhere to regulations found in
28 CFR 46 Protection of Human Subjects.

------------------------------

Exhibit A. Reasons for including incident in the medical records analysis 

Reason for Inclusion--Number of Visits for Care*--Percentage of Records
Analyzed

Injury noted in record --93--50.5
Domestic violence noted in record --59--32.1
Problems with intimate relationship noted in record--46--25.0
Domestic violence screen completed--41--22.3
Referral made to domestic violence services--23--12.5

* The total adds to more than the 184 visits because in some instances the
medical record met more than one criterion for review.

------------------------------

Additional information and Resources

The full report of the study summarized here is on the Web site of the
Domestic Violence Institute, Northeastern University School of Law:
http://www.dvi.neu.edu/ers/med_doc.

The Web site of the Domestic Violence Institute, Northeastern University
(http://www.dvi.neu.edu/default.htm), has additional information,
including information about the collaboration between the Institute and the
Boston Medical Center Domestic Violence Project.

 o American Medical Association, Diagnostic and Treatment Guidelines
on Domestic Violence, Chicago: AMA, 1992. 19 pages. Ordering
information is on the AMA Web site:
http://www.amaassn.org/ama/pub/category/3548.html.

 o Massachusetts Medical Society Seminar Series on Domestic Violence.
This series of four interactive educational seminars--available on slides,
video, and CD-ROM--is intended to improve physicians' ability to screen
and care for patients at risk for domestic violence. Information is at the
Society's Web site: http://www.massmed.org/pages/dv_curriculum.asp.

 o Following up the study described here, V. Pualani Enos is developing a
protocol to improve the documentation of domestic violence in health care
settings. (This study is supported by NIJ grant 2000-WT-VX-0014.) The
report of the study is expected in 2003.

------------------------------

Nancy E. Isaac, Sc.D., is Senior Research Scientist with the Harvard
Injury Control Research Center, 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
supported by NIJ grant 97-WT-VX-0008. 

Findings and conclusions of the research reported here are those of the
authors and do not necessarily reflect the official position or policies of the
U.S. Department of Justice. 

The National Institute of Justice is a component of the Office of Justice 
Programs, which also includes the Bureau of Justice Assistance, the
Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency
Prevention, and the Office for Victims of Crime.

This and other NIJ publications can be found at and downloaded from the
NIJ Web site (http://www.ojp.usdoj.gov/nij).

NCJ 188564

------------------------------

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

 o 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.

 o 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.

 o 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
http://www.ncjrs.org/pdffiles1/nij/183781.pdf.

 o 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.

 o 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.

 o 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 
askncjrs@ncjrs.org