Medical Malpractice: Don’t Believe Everything You Read – Part 3

Anyone who does medical malpractice litigation has heard the following: “If it’s not documented in the medical record, it was not done.” The omission of critical facts can be a significant finding that supports liability. Although there is really little to prevent a health care provider from testifying that an omitted fact from the record was a simple oversight in documentation, it is subject to skepticism since the recalled undocumented fact will invariably deflect liability and support the defense’s version of what occurred.

Prior to electronic health records, the physician progress notes represented a recording of events that occurred in the previous 24 hours. They were created so that they could be read and relied upon by subsequent medical providers to make treatment decisions. With the written medical record, physician progress notes contained a treasure trove of important information. This is no longer the case with the advent of electronic health records.

The construction of progress and consultant’s notes in electronic health records is very different than the construction of handwritten notes. Typically what now occurs is a five step process: 1) copy and paste yesterday’s note; 2) import the updated vital signs and laboratory results; 3) import outdated x-ray, CT and MRI reports and consultation notes; 4) update the note; and 5) sign the note. The only step in this process that may actually require seeing and examining the patient is updating the note. The end result is often an unreadable, lengthy note that contains outdated and inaccurate information. It seems clear to me that the notes of today are not created to be read and relied upon by the treatment team, but instead, are made to become warehouses of data. Multiple studies have found that poor communication between providers is the number one cause of preventable injuries. Electronic health records are a contributing factor to poor communication.

I now question the validity of the initial premise of this message; that is, “If it’s not documented in the medical record, it was not done.” In the world of electronic health records, we need to ask:  “If it is documented in the medical record, does that mean it was done?” Frequently, the answer is No! With pre-populated physical examinations, the check of a single box may place in the record that the patient had a normal pulse rate and rhythm with no murmurs or gallops. Even though such a normal finding would require the health care provider to listen carefully with a stethoscope, no such exam is done despite the automated record. I have had records include this information when the health care provider admitted they did not listen to the heart with a stethoscope and consequently could not possibly have assessed whether the patient had a murmur or gallop. Even more alarming is the documentation of false information. For example, I’ve had cases where a normal neurological exam was documented, and the patient was paralyzed; a normal respiratory exam was documented when the patient was on a ventilator; the lower extremity exam was documented as normal when the patient’s leg was amputated. One medical witness actually testified that her note, indicating the patient had been moved every two hours was not necessarily true because they document the “standard of care”; in other words, it might say the patient was moved because that’s the “rule”, but that does not mean that’s what they actually did!

The questions we ask when reviewing potential cases significantly impact our decisions on whether we should proceed with an investigation. An essential question we now must include is, “Does the fact that it is documented in the medical record mean that it was actually done?”

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