The medical record can be your best friend or your worst enemy in litigation. More than that, a well documented record can prevent a lawsuit altogether. In order to see how, one must understand the process of how a lawsuit comes to pass. Whenever there is an unexpected or untoward outcome, the patient or the patient’s family will have many questions. The first and best source to answer those questions is the health care provider himself or herself. As I’ve written in previous posts, this interaction, if handled properly, can be very effective in preventing litigation.
Sometimes, though, the patient or his family will not be satisfied with the answers they receive. That’s when they consult with an attorney. (There are undoubtedly many instances where people just sue for the money, but there isn’t anything anyone can do to prevent that). That attorney is going to obtain the medical record and review it with one question in mind: Is it worth my time and money to pursue this case? This is where quality charting can make a difference. Quality charting is timely, accurate, and factual (as opposed to editorial). In our experience, plaintiffs’ attorneys are looking for one of a number of red flags:
- Late Entries – Every health care provider understands that it is not always possible to chart contemporaneously during the course of the day. Many times, nursing notes are scribbled on a notepad and put into the chart at the end of the shift. Although this is not ideal, it is generally not a big concern. What is a concern is the entry that gets added to the chart days or weeks later. In that instance, it must be made clear that it is a late entry. Most hospitals have been cracking down on the practice of late documentation. We have all seen the operative note that was dictated weeks or months after the fact. Fortunately, this is a dying practice. Such reports have no credibility, particularly when they are dictated after the extent of the bad outcome is known, and when it comes to defending your care, credibility is everything.
- Incomplete or Absent Documentation – If there are large gaps of time in a hospital chart where there is no documentation, a plaintiff’s attorney will pounce. Such gaps provide a perfect opportunity for the plaintiff’s attorney to fill in whatever information they want. The practice of only charting abnormal findings can be problematic. I once represented a hospital whose nurses would only chart vital signs that were abnormal. Would you rather show a jury a well documented series of normal vital signs or argue “we checked them, we promise, and the fact that there is nothing written down means they were normal”? Needless to say, their practice quickly changed.
- Illegible Charting – The problem of impossible to read doctor’s notes has become less prevalent with the advent of electronic medical records. There are still plenty of opportunities for this problem to crop up, however. Illegible charting poses two problems in a malpractice case. First, it affects the practitioner’s credibility. Jurors often conclude, and plaintiff’s attorneys argue, that a sloppy record is an indication of a sloppy practitioner. Second, it makes it harder for the plaintiff’s attorney to get a clear picture of what you did when he or she is deciding whether to take the case. It is not uncommon for a plaintiff’s attorney to discover for the first time during a defendant’s deposition, when the defendant translates his or her chicken scratch, that the defendant did nothing wrong. This has happened to me more times than I can count. Once suit has been filed, though, it is generally too late for the plaintiff to turn back.
- CYA Notes – Disagreements often arise among health care professionals. It is not uncommon for a nurse, for example, to feel a physician is taking the wrong course of action. It is human nature to not want to go down with the ship, so the nurse’s impulse in that setting is to document his or her disagreement. That impulse should be resisted at all costs. Keep the charting factual: what did you do and when did you do it. Don’t editorialize. The medical record is not the place to fight these sorts of battles. A good plaintiff’s attorney knows a CYA note when he sees it, and it is like catnip. Plaintiff’s attorneys like nothing more than the sound of multiple defendants fighting among themselves. It is the sound of money.
- Altered Records – Trying to alter the record after the fact to paint a better picture is a catastrophic mistake. It screams guilty. Plaintiff’s attorneys will discover this 100% of the time, and will go to great lengths to prove that the record was altered where it is even questionable. They will hire forensic document examiners and spend tens of thousands of dollars to have the ink analyzed and dated. With the advent of EMR, there is simply no way to cover your tracks on such changes. Plaintiff’s attorneys are increasingly subpoenaing the “audit trails” and metadata for EMR to determine if there has been any tampering. Why would they go to such great lengths? Because they know that if the chart has been altered, they win. Period. Live with the record as it is. If there are problems with the care, let your lawyers deal with them. You might be surprised what they can come up with.
A timely, accurate, and factual medical record can be a huge benefit in litigation. It can be the most credible witness for the defense. More than that, it can talk a plaintiff’s attorney out of pursuing litigation in the first place.
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