Neinstein's Rose Leto discusses role of record-keeping in medical malpractice cases
This article was produced in partnership with Neinstein Personal Injury Lawyers.
In an ideal situation, plaintiff counsel would have at hand complete, accurate, detailed, and contemporaneous physician notes that allowed them to review the facts of the case as they occurred. But unfortunately for both sides of the table, this isn’t always a reality.
At their best, the notes document the healthcare provider’s complete interactions with the patient and provide insight into key components such as the patient’s subjective complaints, the physician’s examination and assessment findings, and the factors that went into their diagnosis and treatment plan. When those records are less than ideal, the healthcare practitioner must rely on their memory which creates evidentiary and credibility issues.
“Medical negligence cases necessitate a detailed assessment of the facts available at that time, not a retrospective assessment, and where those records are missing and evidence is lacking, there’s a concern — and that opens up the door to an adverse inference finding against the physician,” says Rose Leto, partner at Neinstein Personal Injury Lawyers. “Meticulous record-keeping on the part of healthcare practitioners is critical in a medical negligence case as it allows us to have that factual basis, and a recent decision reaffirms that duty.”
There’s a legal basis for record-keeping that states all healthcare providers, but especially physicians, have an obligation to keep well-documented clinical notes. There are several laws that detail what that entails and the CPSO has a number of policies, including its medical records documentation policy. This states that the records must be legible, understandable to other healthcare professionals, accurate, complete, and comprehensive. It also stipulates the records must be in English, kept chronological, and be signed by the author.
“It’s a legal requirement that these records are kept, but it’s good practice as well,” Leto notes, adding that the importance of proper record-keeping has been recognized by the courts as part of the standard of care.
“The caselaw is clear that a physician has an obligation to accurately record the details of their treatment of and interaction with their patient. The court has said the duty is two-fold: it helps remind the physician of the patient’s condition and treatments given, and it communicates that information to other people who are treating the patient.”
Though in and of itself it’s not enough to establish liability, if a physician doesn’t comply with regulatory requirements and fails to maintain proper records, and that record-keeping is causative to the adverse outcome, it can be considered a breach of the standard of care. More commonly however, improper documentation leads to an adverse inference against the physician which impacts their credibility and the reliability of their evidence. The latter was the scenario in a recent decision, Kotorashvili v. Lee.
In Kotorashvili, the defendant physician had been treating the plaintiff for a fracture and at an appointment, made a note in his records about his intended treatment plan which was a follow-up in three months where they’d do a repeat X-ray and discuss scheduling surgery to remove the hardware. But six weeks later — prior to that follow-up plan occurring — the plaintiff had surgery to remove the hardware.
There was no notation in the physician’s chart as to why the treatment plan was changed and the removal occurred earlier, and no documentation of any discussions outlining the material risk of the change. While the physician did have some evidence that additional meetings occuredd after the treatment plan was made and before the hardware removal surgery, none of it was properly recorded. The court found the physician’s clinical notes were missing or absent in several respects, and that the physician could not explain why the surgery took place earlier than planned.
“Ultimately, given the lack of contemporaneous evidence or medical records, the court rejected the defendant physician’s evidence on all areas where he relied on his memory,” Leto says, adding that the judge went on to say that when the defendant doctor alleged he did do something — for example, discuss the risks of refracture with the patient — if there was no notation of it in his records, the court drew an inference that it never happened at all.
The case is significant not only because it reestablishes the physician’s obligation to keep adequate records, but because it affirms that where the record-keeping is inadequate, it can be used to draw an adverse inference to undermine the defendant’s credibility and permit a finding that the undocumented evidence simply did not occur. While one could argue this decision was preferable to the plaintiff, each case is subject to its own factual analysis and plaintiffs are already at a disadvantage in medical malpractice litigation.
“There are larger concerns where the main goal would be to have properly documented medical records — that’s in the plaintiff’s best interest,” Leto says. “It’s what puts them in the best position to get proper medical care and to be able to evaluate the facts of the case and the evidence available should they be exploring a potential medical negligence claim.”
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