The Defensible Medical Record
A patient’s medical chart, prepared when events are vivid in your mind, is often the only source of important medical care details that may otherwise be forgotten.
In the event of litigation, the medical record is usually the most critical piece of evidence. It is considered reliable and credible because it was created in the normal course of business by the physician, hospital, or clinic at or near the time of the events in question, when there was no incentive to fabricate or embellish what occurred.
It is critical to remember that plaintiff’s counsel will remind you (at deposition and again at trial) of the adage you probably learned in your training—that in circumstances where the record is silent or otherwise incomplete, “If it’s not recorded, it wasn’t done.”
Don’t Trust Your Memory
As a defendant under oath, you may be subjected to skillful cross-examination by opposing counsel and asked to recall and testify about intricate details of a patient’s care. Usually, such details of the patient’s medical management relate to events that occurred years earlier. Suddenly, a few seemingly unimportant details can become the focal point of allegations.
The argument will be made that if the medical record had contained some additional important items of patient history or findings, the patient’s unfortunate outcome could have been averted. There is no adequate substitute for a detailed medical record to refresh your recollection of the total patient history, physical findings, interactions with the patient, and your earlier thought processes. Complete records, when introduced as evidence, do much to offset patient allegations that a physician was negligent in making medical decisions and providing treatment.
Upon receiving notice that a malpractice suit is about to commence or has already been filed, ensure the safety and integrity of the patient’s medical record. Changes made to the medical record after learning of a lawsuit only raise questions about truthfulness, motives, and the quality of actual medical care. Experts in the field of document examination are frequently called to testify that a record has been added to or altered. Experts can identify portions of an entry unnaturally squeezed in between other notations or inconsistencies in the color or character of the ink or typed lettering from one portion of an entry to another.
Frequently, these experts are also able to demonstrate lack of uniformity in the indentations that have come through onto an underlying chart page from an overlying page containing the questioned entry. Perforations or staple holes in the corner or at the top of one page of the chart that differ from the number of similar perforations on other pages also give the document examiner clues about a page’s authenticity. These and many other refined techniques make it extremely difficult for alterations or additions to the medical record to escape detection. An otherwise completely defensible case can become utterly indefensible if the medical record is altered. It could also expose you to punitive damages. In short, never alter the medical record.
Even record changes that go undetected rarely enhance the likelihood of a successful defense. Such changes are quite often written in a self-serving manner with benefit of hindsight that more often than not detracts from the best viable defense. For instance, an entry added after the fact to a patient’s chart indicating that certain diagnostic or therapeutic tests or procedures were recommended but refused by the patient can lack credibility simply because the patient had, in all other respects, been totally cooperative and adherent with all prior and subsequent medical recommendations.
When the plaintiff disputes the accuracy of such an entry, it raises an issue of credibility that may prove considerably more difficult to overcome than any issue involving actual medical management. Additionally, the chances of a successful defense based on a plausible argument that the patient’s symptom or condition was not sufficiently acute or severe to warrant further testing or alternative procedures are negated by the physician’s own afterthoughts later added to the record. Almost as damaging to a successful defense are lengthy, self-serving entries written in the normal chronological sequence of the chart that were entered only after a medical complication or catastrophe occurred.
If a patient was so forewarned or advised of alternatives, it should have been documented in the record before the complication or catastrophe occurred. Entries written after a complication has occurred can reduce the persuasive effect of an otherwise valid defense.
Following the passage of the American Recovery and Reinvestment Act of 2009 and the subsequent availability of substantial financial incentives to the healthcare community, the use of electronic medical records surged exponentially. Paper charts are being used much less frequently and are quickly becoming a medium of the past. In professional liability litigation, one of the first steps taken by an attorney considering accepting a case is to obtain a complete copy of the chart. In situations in which a practitioner has an electronic record, counsel will promptly retain information technology experts to conduct a metadata audit. The audit provides a complete analysis of every keystroke (including additions, deletions, and changes), when the entries were made and by whom, and how long a particular document was open for review and revision. As noted above regarding changes to a paper chart, such corrections, deletions, late entries, and addenda are readily discoverable and patently obvious.
Record Maintenance and Care
Most communications with your insurance carrier or attorney are legally privileged and, as such, are not subject to discovery by the opposing party. These communications should be kept separate from the patient’s chart, thereby eliminating the possibility of their being photocopied or provided to the opposing party without a court order specifically compelling their production.
An important safeguard in the office is a procedure that requires your personal approval or the approval of a designated member of your office staff before medical information from the patient’s chart can be released or before the chart can be photocopied. This process should also include documenting when and where the photocopied record was sent. Federal and state privacy regulations must be strictly followed regarding keeping and releasing protected health information.
In the event of litigation, it is helpful to your legal representative to have some means by which to reconstruct the dates when the chart was previously photocopied and by whom. Many physicians and defense counsel have been embarrassed during discovery proceedings or a trial to discover that some other party, in advance of litigation, obtained an earlier photocopy of the medical chart that materially differs from the original chart.
Do nothing to your medical record that could, in the future, reduce your credibility before the people—including a jury—who may be asked to pass judgment on the quality of your medical care. Remember, most errors of medical judgment can be successfully defended when you are sincere, dedicated, and credible.