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Documentation: Critical at Trial


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Documentation: Critical at Trial

By Bob Hamel, Jr., Melick, Porter & Shea, LLP

Related to: Ambulatory, Communication, Cures Act: Opening Notes, Emergency Medicine, Primary Care, Nursing, Obstetrics, Other Specialties, Surgery

Documentation is something medical professionals are probably sick and tired of hearing about. You’re taught about it first in school, and then, in training, it’s drummed into your heads. In practice, you’re told time and again by risk managers, insurers, and others that it’s important—for good patient care, for communication and understanding among providers, for billing purposes, for quality assurance, and for a myriad of other reasons. Well, it is important for all of those reasons, but let me add one more: it's important, no, critical, at the time of trial, in cases alleging medical malpractice.

Above all, these trials rise and fall on credibility—the way a jury assesses the credibility of both the plaintiff and the defendant involved. I always tell my clients that by the end of the trial, if the jury would want you treating their mothers, we’ll probably do fine.

There is no better way to reinforce the credibility of a defendant with the jury than with a thorough note in the record, demonstrating the clinician’s thoughts at the time, and evidencing the reasonableness of his or her care and treatment of the patient; the reason for this is that the medical record is contemporaneous. When a medical record is presented in court, the impact of a defendant’s notes can be huge because the records presented are not created after the lawsuit is filed or for use at trial, but, for the most part, they're created well before the alleged incident occurred. This often puts these records beyond reproach, in the eyes of the jury.

Two recent cases highlighted this issue for me.

One case involved the care and treatment of an elderly patient in a nursing home setting. State regulations required the physician to see the patient within a certain time frame after admission. While the physician testified that she was certain that she had visited the patient according to her practice and procedure, there was no note in the record to document that this had in fact occurred. There was also a lack of documentation that the nursing staff had consistently measured the patient’s fluid input/output, despite specific orders to do so (due to a risk of dehydration). Again, although the nurses testified that they specifically recalled checking fluid input/output for this patient, and were on top of this accountability, the documentation was incomplete at best, leaving the testimony to stand alone.

Among the above problems with the documentation in this particular medical record, there was also a stated lack of communication between the hospital staff and the patient’s family about the patient’s decline. The defense eventually was forced to settle the case, due in large part to a poorly documented record.

Another case demonstrates the way a jury can react positively to documentation. In this particular case, the patient had experienced an alleged complication following palate surgery. Post-operatively, she complained of feeling a hair-like sensation in the back of her throat that bothered her very much and made it painful to swallow. The operative note described no injury to that area. Apparently, the patient had had an uncommon scarring reaction in another area of her throat, which had then expanded and encroached on the surgical site, causing the complication.

Plaintiff’s expert contended that such scarring in the area, in the absence of surgical injury, was impossible. At trial, the physician testified that the surgery had gone without incident. The plaintiff testified that the physician continued to tell her that the surgery went “great,” even after she repeatedly complained to him that he seemed unconcerned about how she felt post-operatively; she also said that she was left with the sense that there were no options other than just to live with her condition. The case would clearly rise and fall on whether or not the jury believed the physician.

The key to the case for this physician was that he had outstanding documentation both pre- and post-operatively of the care and concern he had for his patient. His post-operative notes, for example, demonstrated that he had given the patient his home number, that he had called her from his home on a Sunday evening to see how she was doing, and that he had set up numerous options to help his patient reduce the effects of this unforeseeable scarring.

This documentation flew in the face of the plaintiff’s trial testimony, and this disparity between her testimony and the physician’s contemporaneous notes had the effect of simultaneously discrediting the plaintiff and confirming the credibility of the physician. This credibility attached not only to the issue of the post-operative care, but also to the key issues in the case, including the lack of surgical injury. The jury came back in favor of the physician in a very short time.

As medical professionals, you have the advantage of testifying at trial as to what your practice and procedure would have been on any given day, even when you have no specific memory or documentation of the care in question. The law allows for that equivocation because of the large number of patients you treat. While such testimony is helpful, its effect is relatively minimal at trial, compared to the impact that even the simplest of notes can have.

Document your record because it’s good care, it allows for communication and understanding among providers, and because 
it facilitates billing and quality assurance. But do it also because if a jury ever has to assess your credibility, you'll have more than your word and your usual practice and procedure to make sure that they believe you.

September 1, 2006
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