Med Mal Antidote: Good Records

Juries consider the medical record to represent both the skills of the physician and the quality of care rendered to the patient: The record is a photograph of the interaction between a physician and a patient at a particular moment in time. Therefore, it is imperative that every effort be expended to create a thorough, timely and accurate medical record.

Note keeping Is Now Critical

While one cannot always avoid being sued, one can often avoid litigating the contents of the patient's paperwork by following basic guidelines. Every medical record should provide a description of the patient's pertinent history, details of the patient's current complaints, and all clinical findings. The language must be objective and reflect only medically germane information. Disparaging remarks about the patient (which, surprisingly, are not all that rare in medical records) will imply a bias against him or her and cast doubt on the quality of that patient's care. Notes regarding physical examinations, diagnostic tests, medications ordered and treatments given can be enhanced by including the therapeutic indications for each. Any advice or instruction given to the patient, including that given during telephone conversations, should be detailed in the record. In addition, recording the patient's missed appointments or noncompliance with treatment is a formidable defense tool.

Unclear Handwriting No Longer an Option

A record is only as informative as it is legible. Others who need to rely on it may not be able to read important details. This is clearly true in a hospital where many different physicians and nurses review and rely on chart entries. It is also increasingly true for group practices, in which a patient may be seen by different physicians. Juries expect all aspects of medical treatment to be well integrated. Liability will almost certainly attach where it appears to the jury that one physician was not aware of the treatment rendered by another, and so made treatment decisions based on incomplete information. When appropriate, notes should indicate that entries on other charts were reviewed and considered.

Never Change an Entry!

The chart should reflect the treatment plan and should clearly show that the proposed treatment, together with associated risks, was discussed with the patient, and that the patient agreed to it. If plans change as a patient reacts to medication and test results are received, earlier entries should never be changed or supplemented. If a record must be supplemented, the new entry should be properly dated. Mistakes should be crossed out with a single line and noted as an error, not obliterated.

Because medical records are presumed made in a timely fashion, they are also presumed to be free of the taint of self- interest. Any later changes or additions to records are generally assumed to be self-serving, and juries will not hesitate to punish anyone they believe has altered records to his or her own advantage. On occasion, a physician may anticipate an impending lawsuit, and pulling the chart to make revisions before the arrival of the official records request from a plaintiff's lawyer may seem like a smart plan. Your clients should be warned that such actions could come back to haunt them. No matter how much control the physician believes he or she has over his or her own practice, a medical chart can be disseminated in a variety of ways, well before a lawsuit is commenced. This could include copies or summaries sent to subsequent treating or consulting physicians, to insurance companies, or even to the plaintiff, as the result of an ordinary request. In addition, it is not unheard of for staff to provide charts to patients or their attorneys before the commencement of the suit without the physician's or hospital's knowledge.

Case in Point

A now-concluded case from our firm's files demonstrates the trouble a physician can face with 'supplemented' records. After receiving a summons and complaint, the physician pulled the patient's chart. This patient had been treated by the physician for many years before moving to another part of the country. The physician remembered that at their last visit, she had highly recommended a series of diagnostic tests that, if they had been done, would have provided an early diagnosis of the plaintiff's now life-threatening disease. The doctor vividly recalled that the patient repeatedly gave assurances that he would schedule the tests after he settled into his new home. On reviewing the chart, the doctor was horrified to see that her recommendations were not recorded in the medical records. She immediately made a note reflecting the conversation a year earlier, inserting it into the chart.

As the litigation proceeded, the doctor provided counsel with the supplemented office records. However, unbeknownst to her, the doctor's secretary had given the patient a set of records to take to his new physicians just before he moved. At her deposition, the doctor testified that the chart was her official office record, with all entries made at the time of treatment. Of course, plaintiff's counsel had a copy of the original chart, without the supplementation, and produced it after her testimony. Embarrassed and facing accusations of perjury, the doctor was compelled to quickly settle the case rather than face what would have been protracted questioning at trial about her alteration of the record.

Conclusion

Well-constructed medical records, without late additions or deletions, can be an effective shield against medical malpractice claims. It is not easy to continuously maintain a perfect record, but every effort made will likely enhance the care and treatment rendered to the patient and decrease the likelihood of a successful lawsuit. Attorneys should strenuously stress to their clients that thorough contemporaneous record-keeping will go a long way in convincing a jury that the medical treatment rendered was up to standard.

Patricia M. Dillon is a trial attorney in the malpractice defense group of Meiselman, Denlea, Packman & Eberz, P.C. in White Plains, NY. She can be reached at 914-517-5000.

Any physician who has had the unfortunate experience of being the target of a medical malpractice lawsuit bemoans the attention paid by the plaintiff's lawyers to precise record keeping. Most physicians pride themselves on their medical skills, not their neat note taking. They will tell you that entries in a medical record are meant to enhance the care and treatment rendered to a patient, not to be read by lawyers or juries many years later.

'Preventive Medicine'

Although they may resist your advice as meddlesome and unnecessary, if you have medical practitioners as clients, it would be wise to advise them that a bit of 'preventive medicine' in the record-keeping department might be in order. They need to know that in the case of a lawsuit for medical malpractice, the condition of the medical records is crucial.

Juries consider the medical record to represent both the skills of the physician and the quality of care rendered to the patient: The record is a photograph of the interaction between a physician and a patient at a particular moment in time. Therefore, it is imperative that every effort be expended to create a thorough, timely and accurate medical record.

Note keeping Is Now Critical

While one cannot always avoid being sued, one can often avoid litigating the contents of the patient's paperwork by following basic guidelines. Every medical record should provide a description of the patient's pertinent history, details of the patient's current complaints, and all clinical findings. The language must be objective and reflect only medically germane information. Disparaging remarks about the patient (which, surprisingly, are not all that rare in medical records) will imply a bias against him or her and cast doubt on the quality of that patient's care. Notes regarding physical examinations, diagnostic tests, medications ordered and treatments given can be enhanced by including the therapeutic indications for each. Any advice or instruction given to the patient, including that given during telephone conversations, should be detailed in the record. In addition, recording the patient's missed appointments or noncompliance with treatment is a formidable defense tool.

Unclear Handwriting No Longer an Option

A record is only as informative as it is legible. Others who need to rely on it may not be able to read important details. This is clearly true in a hospital where many different physicians and nurses review and rely on chart entries. It is also increasingly true for group practices, in which a patient may be seen by different physicians. Juries expect all aspects of medical treatment to be well integrated. Liability will almost certainly attach where it appears to the jury that one physician was not aware of the treatment rendered by another, and so made treatment decisions based on incomplete information. When appropriate, notes should indicate that entries on other charts were reviewed and considered.

Never Change an Entry!

The chart should reflect the treatment plan and should clearly show that the proposed treatment, together with associated risks, was discussed with the patient, and that the patient agreed to it. If plans change as a patient reacts to medication and test results are received, earlier entries should never be changed or supplemented. If a record must be supplemented, the new entry should be properly dated. Mistakes should be crossed out with a single line and noted as an error, not obliterated.

Because medical records are presumed made in a timely fashion, they are also presumed to be free of the taint of self- interest. Any later changes or additions to records are generally assumed to be self-serving, and juries will not hesitate to punish anyone they believe has altered records to his or her own advantage. On occasion, a physician may anticipate an impending lawsuit, and pulling the chart to make revisions before the arrival of the official records request from a plaintiff's lawyer may seem like a smart plan. Your clients should be warned that such actions could come back to haunt them. No matter how much control the physician believes he or she has over his or her own practice, a medical chart can be disseminated in a variety of ways, well before a lawsuit is commenced. This could include copies or summaries sent to subsequent treating or consulting physicians, to insurance companies, or even to the plaintiff, as the result of an ordinary request. In addition, it is not unheard of for staff to provide charts to patients or their attorneys before the commencement of the suit without the physician's or hospital's knowledge.

Case in Point

A now-concluded case from our firm's files demonstrates the trouble a physician can face with 'supplemented' records. After receiving a summons and complaint, the physician pulled the patient's chart. This patient had been treated by the physician for many years before moving to another part of the country. The physician remembered that at their last visit, she had highly recommended a series of diagnostic tests that, if they had been done, would have provided an early diagnosis of the plaintiff's now life-threatening disease. The doctor vividly recalled that the patient repeatedly gave assurances that he would schedule the tests after he settled into his new home. On reviewing the chart, the doctor was horrified to see that her recommendations were not recorded in the medical records. She immediately made a note reflecting the conversation a year earlier, inserting it into the chart.

As the litigation proceeded, the doctor provided counsel with the supplemented office records. However, unbeknownst to her, the doctor's secretary had given the patient a set of records to take to his new physicians just before he moved. At her deposition, the doctor testified that the chart was her official office record, with all entries made at the time of treatment. Of course, plaintiff's counsel had a copy of the original chart, without the supplementation, and produced it after her testimony. Embarrassed and facing accusations of perjury, the doctor was compelled to quickly settle the case rather than face what would have been protracted questioning at trial about her alteration of the record.

Conclusion

Well-constructed medical records, without late additions or deletions, can be an effective shield against medical malpractice claims. It is not easy to continuously maintain a perfect record, but every effort made will likely enhance the care and treatment rendered to the patient and decrease the likelihood of a successful lawsuit. Attorneys should strenuously stress to their clients that thorough contemporaneous record-keeping will go a long way in convincing a jury that the medical treatment rendered was up to standard.

Patricia M. Dillon is a trial attorney in the malpractice defense group of Meiselman, Denlea, Packman & Eberz, P.C. in White Plains, NY. She can be reached at 914-517-5000.