Medical records hold the key to malpractice cases

Published on
7 min read

Why do medical records hold the key to malpractice cases and why are so many episodes of patient care poorly recorded? In this article Stephen King offers some insights into small changes in practice that could have a significant and beneficial impact on avoiding malpractice claims.

During over 30 years of legal practice, initially acting for individuals and supporting their claims of malpractice against medical practitioners, but since 1989 advising and acting for medical practitioners, hospitals, and their indemnity insurers, it still surprises me that medical records are a bit of a hit and miss affair. Granted, I only see malpractice cases when a claim has been made, so there could be (I am sure there are) vast numbers of episodes of patient centred care where the records are impeccable. Even so, I rather think that the selection of records I see in the malpractice cases I deal with reflect a reasonably average sample across specialties and units.

Why mention records? Because they are often the key to whether a malpractice case succeeds or fails. Looked at another way and from the point of view of a commercial indemnity insurer, the absence of good records will be one reason why, if there is any doubt about the vulnerability of a prospective defendant doctor, surgeon, nurse, or hospital, the indemnity insurer will be more likely to look (and look early) at trying to settle the claim.

Surgeons and others complain, of course, that insurers might not support them in looking to settle a claim, but the same surgeons do not do themselves any favours by keeping poor records, or being part of a process that allows poor record keeping.

What is a medical record?

To me, and to a court the record is the documented evidence of the relationship that came to pass between a doctor or other health professional, and their patient.

Consider the following questions:

  • How did this doctor come to be seeing this patient?
  • Why did the patient come to see the doctor?
  • What history did the patient relate?
  • What questions did the patient ask?
  • What relevant background, material to the discussion, was identified?
  • What examination took place?
  • What advice was provided?
  • How was that advice communicated, and followed up?
  • What process was applied to secure the consent of the patient to any treatment advised?
  • What additional information was the patient given, how was it given and recorded that it was given?
  • What paperwork or electronic record was completed and where is it kept?

Of course, there are many more questions one might ask depending on the particular episode about which a patient asked a doctor for advice, but these are the basic questions on my list when I first look at the defence of a malpractice case. Because often the allegations are simply, when it is all boiled down, that a patient was not given advice about something they should have been told about. That is at least what the patient says.

There is interesting published information about the recall of patients when asked about the advice they were given. The paper I particularly like is the piece by Roy Kessels in the Journal of the Royal Society of Medicine. It’s a bit old now having been published in 2003 but is available on the web if you search for it, and it sets out how little detail patients often recall of the information they are given by doctors. To help you out here is a link to the piece.

In my crusade to have all doctors keeping fantastic records I have a couple of points to draw attention to. A particular delight is where I see a case where there has been a full referral letter, setting out relevant information, and after a consultation with whoever the patient was referred to, there is a full letter sent back to the referring physician, and to the patient. That deserves a fanfare. It always surprises me how little that seems to happen. Looking at my own practice as a lawyer, I see clients (lots of doctors) and give them legal advice which I follow up in writing - always. I don’t see them, give them advice and then write to their GP and tell them what my advice is, I tell the client. Yes of course in a clinical context writing and telling the GP is appropriate, but isn’t it also appropriate to write to the patient? If you think the answer to that question is no, then you need to rethink your role.

Miscommunication

Miscommunication, or rather the means to prove there was no miscommunication, and records, have a strong relationship to each other. Why not write and advise the patient what you told them during your consultation, as Roy Kessels was advocating in 2003, and I have been advocating since 1989? Would you expect to see a lawyer and them not follow up their advice in writing to you?

Another gem is the printed form. Who designs these documents? Many have boxes that are routinely left blank. Why? If the form is not appropriate, change the form. A blank on a form is asking for interrogation about why it is not completed.

One recent example was a form that had a space in which could be inserted information about what additional advice leaflets were provided to a patient being advised about invasive surgery. The space was blank. At face value this demonstrated that no additional leaflets were provided to the patient. And yet there were a number of leaflets available at that unit that covered the treatment proposed, the operative procedure, the risks and complications, the recovery period and so on. Were they provided to the patient? Who knows. The leaflets were clearly designed to be given out, but in the absence of a record that they were, how would you prove they were, or that you drew the attention of the patient to them, if you needed to. In that case those additional leaflets probably held the key to the case.

That patient episode was one of hundreds, and took place some years ago and importantly, some years before the claim that is now being made against the surgeon, was intimated. The consultation was not particularly memorable, for the surgeon at least, who cannot recall what if any additional leaflets were provided, and the patient now alleges that the advice that might have been offered was not. Tricky. Of course you might say that’s the job of the nurse or the administrative team to hand out the leaflets. Fair enough, but the consulting doctor is part of the process (in that case of ensuring the advice was given and recorded as having been given) and it’s the surgeons name in the cross hairs.

Complete the forms, because I can promise you two things. First, a court will see any incomplete record as a lack of attention to detail, and think that if you can’t be bothered to complete a form, perhaps you did not provide the advice you should have. That puts you on the back foot. Second, that the patient will recall, or at least say they will recall, their consultation with you as if it happened yesterday. At that moment in time you were the centre of their world and they recall clearly everything that happened and the consequences that followed, which they may be able to relate to a court with emotion and passion. Can you recall what happened like they can? At this point many doctors really wish they had followed up their advice in writing, or had filled in that blank on the form.

Another point to bear in mind, and again it goes to the issue of attention to detail, is handwriting. You have probably heard the joke of the doctor telling the patient:

“Good news, when we transferred your records to digital, they became legible.”

Lots of records are still manuscript records. I have difficulty reading some of them and I have a reasonable familiarity with the abbreviations, symbols and terminology, but take it from me, poor or illegible records are a sign of poor communication and sloppy practice. Sorry to put it so bluntly, but given the job I do I feel I can. Which reminds me of another joke, again doctor to patient:

“I have reviewed your file and I am afraid you have a bad case of gobbledygook.”

If after reading this, you are happy with your record keeping, excellent. If after reading this, you know you need to change your practice, please do. Although it seems claims for malpractice are only made against someone else, the practice you are in is one where the risk of a claim being made against you is quite high.

Given that a prospective claimant can allege you were negligent, bring a legal claim against you (which you may be able to defend) and then walk away if they fail, without any financial risk, and having put you to the trouble of defending yourself - why run the risk of giving someone the opportunity of accusing you of negligent advice, or failing to get consent, if spending a few more minutes on your records keeps you out of the cross hairs?

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