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Obstetrics-related malpractice cases represent the greatest potential for multi-million dollar jury awards. In many of those cases, the experts for both plaintiffs and defendants are asked to review and opine about electronic fetal monitoring (EFM) recorded during labor. But if those records cannot be produced—if the EFM strips or digital files cannot be retrieved (often) years later when a malpractice suit proceeds to trial—the defense faces a serious challenge. Plaintiffs may raise the specter of purposeful destruction of evidence, and jurors are left to question if poor record keeping is emblematic of broader negligence.

The efficacy of electronic monitoring of the fetal heart rate during labor and delivery remains controversial more than three decades after it was introduced. Nevertheless, EFM is standard practice and is invariably a source of dispute in malpractice cases alleging that fetal distress was not promptly recognized and acted upon. From 2003–2007, issues related to documentation of labor and delivery were a factor in 17 claims or suits filed against CRICO-insureds, representing $27.8M in incurred losses. In some cases, the defense had to contend with the fact that the EFM strips could not be located and produced for the trial.

Our Recommendation

The best time to review your institution's EFM tracing retention policy is before you need to rely upon it. Take time now to review your policy and procedures, especially if such review has not been recently performed. A single runaway jury award in an obstetric-related malpractice case can devastate individual providers and tarnish a hospital’s image. Hazarding such outcomes due to inadequate record retention is an unnecessary risk.

Requirements for record retention vary by state, but because EFM tracings may be sought as evidence long after the plaintiff’s date of birth, a long-term storage policy is advised (CRICO recommends 30 years). Paper strips need not be stored with the medical record, but should be readily retrievable and should include patient identifiers, and the monitoring start and end times. While electronic capture and retention of EFM tracings is now commonplace, obstetrical providers need to be cautioned that contemporaneous notations made on printouts are not preserved digitally and, thus, probably not retained. Comments, notes, vital signs, etc., handwritten on an EFM tracing will not be available on the digitally-stored version and should be documented in the patient's medical record as indicated.

March 1, 2008
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