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'If It Was Not Charted, It Was Not Done'
Documentation is an important part of medical care. Consultation notes, test results, physician orders and nursing observations all assist in ensuring continuity of care. In litigation, however, the significance of the written chart is often elevated from a tool for patient care to historical written account of past events. In this latter context, many in the medical community have advocated that if an event (an order, a consultation, a phone call, etc.) was not documented in the official patient record, it did not happen. Over time, this 'negative evidence' has been used to prove negligent omissions on the part of various care providers by showing that they failed to do something that they should have done, because if it had been done it would have been charted. The same 'lack of entry' evidence is also used to disprove (or create doubt) that an event testified to by a witness on the stand did not occur. With this in mind, it is apparent that medical practitioners, patients, and the attorneys who represent them must keep abreast of the trends in this regard in their jurisdictions. Following is a survey of the law of the Federal and various state approaches to the admissibility of and effects of evidence of the lack of entry in medical records.
The Federal Approach
As a general rule, the federal courts value testimony from the witness stand above all other evidence. F.R.E. 801(c). Thus, the Federal Rules of Evidence (F.R.E.) start with the premise that patient care records, like other business records, are generally considered hearsay unless there is a specific enumerated exception or showing of reliability. F.R.E. 802. If the Rules concluded with just these two rules, there would be no reason to be concerned with the admissibility of a lack of an entry in a business record because a party would be precluded from introducing evidence of a lack of entry in a medical record to prove an omission (i.e., that something that should have occurred did not) or to disprove other testimony.
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