The importance of medical records when defending a claim
In most medical negligence claims, the patient’s medical record is the most important source of evidence and will come under close scrutiny. While the claimant has visible injuries that can be shown to a court, the defendant can only rely on the written records to prove what procedures were performed and what sequelae are being reported. Therefore, the importance of a complete and accurate medical history cannot be underestimated.
A complete medical record may include a variety of documentation pertaining to the patient’s condition and care. Clinical findings, diagnostic test results, preoperative care, surgical notes, postoperative care, and the patient’s progress and medications may all form part of the medical history. One vital piece of information that should always be included is a properly obtained signed consent form and ideally, contemporaneous evidence of ongoing recorded discussion as this provides strong evidence that the patient agreed to any procedures and was made aware of the associated risks. A variety of healthcare providers may contribute to the medical records, including GPs, hospital medical and nursing staff and other practitioners such as physiotherapists, psychologists and occupational therapists.
While a poorly kept medical record does not prove negligence on the part of the healthcare provider, it may prevent the defendant from proving that the patient received good care. Furthermore, the claimant’s legal team will probably be aware that poor documentation is actually an advantage where care has been substandard, as it will be more difficult to establish the treatment received by the patient. However, a well-kept medical record is only helpful to the defendant if it documents good medical care. Rarely, medical malpractice cases revolve around specific well-documented acts of negligence. More usually, any negligence is inferred from events, both documented and undocumented. Therefore, the patient’s case may partially rest on assuming that certain key events were not properly recorded and the claimant’s legal team will try to dispute the credibility of the medical records.
An important aspect in establishing the credibility of a medical record is that it must appear to have been maintained during the regular course of treatment. Therefore, anything that indicates a difference in the way the record was prepared or treated may reduce its credibility. Inconsistencies are particularly suspicious, especially where different healthcare providers’ notes appear to contradict each other. The scenario where a doctor reports that the patient was progressing well, but nurses’ records indicate that complications were developing can be extremely damaging to the defendant. Even a difference in the method of record-keeping may cast doubt on the accuracy of the record. For example, a handwritten note in a series of electronic records will almost certainly be questioned.
The commonest way to attack the credibility of the medical records is to demonstrate that they are incomplete or inconsistent. If the claimant’s legal team can show that medically important information is missing or contradictory, a judge or jury may decide that the irregularities of the information support the claimant’s case. Even the unintentional loss of a few pages of a patient’s medical records may be construed as a deliberate attempt to conceal the defendant’s actions or lack thereof.
Medical records should not be altered under any circumstances, as even an inconsequential alteration may cast doubt on the validity of the entire record if noticed by the defendant’s legal team. Indeed, even the appearance that an alteration has been made can have a devastating impact upon a case. In the case of electronic records, the hospital or doctor must prove that these have not been altered by demonstrating that adequate security measures are in place. If a genuine mistake is made in a patient’s record, a single line should be drawn through the entry, taking care to ensure that it remains legible. The new entry should be written next to or above the old one, and dated and signed by the person making the change. The reason for the alteration should also be stated. Supplementing existing notes with newly available test results or additional information is completely acceptable, as long as it is clear that no deception is intended. It is also helpful if any alterations are made as soon as possible after the original entry.
As well as documenting events and dates surrounding the patient’s admission to hospital and treatment, it is important that instructions issued to the patient regarding medications, dietary advice, exercise and follow-up appointments after discharge are also included in the medical record. Furthermore, the importance of reporting any possible complications that arise before the advised review date should also be stressed. Self-discharge against medical advice, and the possible ramifications of this, should also be documented.
Accurate and well-kept medical records are vital to the successful defence of a medical malpractice claim, as they provide the only objective contemporaneous record of the patient’s condition and the care provided. It is therefore the duty of the primary treating doctor to ensure that all records relating to the patient’s management are properly written up and signed. If the patient’s care has been good and this has been fully documented, it is very unlikely that a medical negligence claim will succeed. Therefore, the best medical records will actually prevent litigation from arising in the first place.
Further reading:
Berry DB. The physician’s guide to medical malpractice. Proc (Bayl Univ Med Cent). 2001 Jan;14(1):109-12. doi: 10.1080/08998280.2001.11927742. PMID: 16369598; PMCID: PMC1291321.
Thomas J. Medical records and issues in negligence. Indian J Urol. 2009 Jul;25(3):384-8. doi: 10.4103/0970-1591.56208. PMID: 19881136; PMCID: PMC2779965.
