New Medmal Report: Documentation Matters a Lot

Narrator:

I’m Tom Augello and today we’re talking about something that touches every clinician, every patient, and every malpractice case file: documentation. A new report on national malpractice claims data shows that a doctor or nurse’s defense often hinges not just on what’s written—it can succeed or fail based on what’s missing, what’s misunderstood, and what can’t be defended.

In late 2024, the Harvard medical community’s malpractice insurer, CRICO, partnered with its data division, Candello, to zero in on documentation and published a new benchmarking report called “For the Record: The Effect of Documentation on Defensibility and Patient Safety.”  In a review of Candello’s database of claims from malpractice insurers across the country, documentation failures emerged in one out of every five medical professional liability cases. And when documentation is part of the story, the odds of an indemnity payment skyrocket —140 percent higher compared to other cases.

Despite the eye-catching numbers, some might see “documentation” as an evergreen issue for healthcare risk management. Why prioritize it now? Mark Reynolds is President and CEO of CRICO:

“We’re focused on documentation this year because documentation is a too common issue in malpractice cases. And those cases, also pay more. It’s about a 54 percent increase in payment. So documentation matters. And we know it is something that doctors can do something about. They are the ones that document.”

From EHR copy-paste errors, to undocumented patient instructions, the effects can ripple widely across a care system. Dr. Jonathan Einbinder is Vice President of Advanced Analytics and Coding at CRICO. Dr. Einbinder is an urgent care internist in Boston who helped lead the documentation analysis.

“It’s a rare topic that is both important from a patient safety perspective and from a medical legal perspective. We constantly hear from our members—doctors, nurses, employees, hospitals, physician practices—that they are concerned about documentation; it’s something they want to know more about how to do it, and the best way to take care of patients and also, to avoid getting sued.

We also see documentation as an area which is actionable. It’s something that is within the control of the clinicians who are doing the documentation. And if we can tell them how to do that in a better or safer way, they can actually make changes in their practice.”

The data emphasized how documentation failures show up across all specialties—but with higher costs and more severe outcomes in fields like surgery, obstetrics, and emergency medicine. And the problems? They’re often basic—inconsistent notes, unclear rationale, missing informed consent. These are significant things, whether the concern is legal or clinical.

“It’s the way providers communicate….”

Christine Ringler is a nurse and Candello Patient Safety and Risk Solutions Director.

“Sometimes you don’t see the doctor when the doctor comes in the room or the nurse isn’t at the patient’s bedside, and so you didn’t hear what the doctor said in rounds. So, it’s a good way for communication and, and making sure that it’s good patient, safe care.”

The stakes are high. But according to the report, the power to change is in the clinician’s hands. Laura O’Neill is a Senior Claim Representative for CRICO. She works with defendants and their attorneys to manage each malpractice claim from allegation to trial if it comes to that.

“We never seek to have perfection. That’s not the standard of care. So a perfect note isn’t what the juries are basing their determination of negligence on. However, that being said, we just want the clinicians to have thorough notes, consistent notes, notes that show they were very thoughtful in their care.”

O’Neill knows how those notes—or their absence—play out in court.

“Oftentimes the attorneys will seek to undermine the credibility of the insured, paint them as careless, indifferent, incompetent, based upon the suboptimal documentation. So it does become a theme that we are faced with in a lot of our cases in the courtroom.”

Sometimes, a missing sentence can cost the case. Sometimes, a clear and timely note saves it.

“Oftentimes the care in question occurs many years before the case hits the courtroom. So memories aren’t as credible and we rely upon the documentation. So if there’s good documentation and the clinician presents well as a witness, then both combined can be a very strong piece of our defense.”

The Candello report doesn’t just point out the problems. It lists what works. Actions to make documentation better may take different shapes… like including the patient’s response to recommendations, documenting in real time, or eliminating any language that may be stigmatizing.

Christine Ringler: 

“…making sure that you’re documenting timely, making sure that you’re documenting accurately, making sure that you’re not finger pointing in the medical record, that you’re not judging a patient in the medical record.”

Dr. Einbinder says that what to leave in and what to leave out is an age-old challenge for busy providers. But it’s at the heart of cases with accusations of negligent care.

“A place where doctors and other clinicians get into trouble is when we don’t document the clinical rationale for our decisions. So you can make a decision, I can make a decision that may be wrong. But if I document my thinking and the reason for making that decision, maybe that I’ve considered other diagnoses or that I’m basing my decision on these three factors. Those things, again, are good patient care and also will make the case—if there is a case—much more defensible if it were to come to that. So I think that taking the time to document the clinical rationale for a decision is very important.”

Documenting non-adherence. Reducing copy/paste. Avoiding stigmatizing language. Never altering the medical record after the fact—unless it’s a clearly marked addendum.

Laura O’Neill:

“As far as editing a medical record, they say that it’s best to do it as an addendum. Never change a record. Be honest and always edit as an addendum. That would be a guide we would see in a courtroom that is more honest.” 

What does this information mean for providers, insurers and patients? The report’s authors hope these findings drive change. Not just awareness—but action. Mike Paskavitz is Vice President of Candello.

“This really puts a lot of power in the hands of the provider, the physicians, nurses, and advanced practice professionals who do document the care journey of their patients. And this gives them practical advice that has a very significant opportunity to reduce risk.”

As Dr. Einbinder points out, change won’t come from a perfect note—but from better habits and smarter priorities.

“The report can help identify what’s really important to have in clinical documentation and therefore also things that may not be as important. And then helping to keep your eyes on the prize, so to speak, which is providing high quality, safe care and doing sound medical legal documentation.”