On “You Don’t Say!”—the popular 1960s TV game show—host Tom Kennedy ended each episode by declaring, “Remember, it’s not what you say that counts, it’s what you don’t say.”

When it comes to medical records, both count. Without a doubt, what you say is important, but it’s equally true that what you don’t say (or more precisely, don’t write) can create serious legal problems that land you in court. The importance of thoroughly documenting patient medical records cannot be overstated: Statistical analysis has shown that it is the key defense in 80% to 85% of all medical malpractice claims. Not only do inadequate records often play a role in lawsuits, California law explicitly mandates that complete and up to- date medical records be kept. According to Business & Professions Code §2266, a physician’s failure to maintain adequate and accurate records is unprofessional conduct punishable by fines of up to $2,500 per violation. The Medical Board of California may pursue citations and other disciplinary action in such cases. The following examples, all actual medical malpractice cases, illustrate the importance of thorough documentation.

CASE #1
Allegation: Delayed diagnosis of prostate cancer in a 47-year-old man
Indemnity paid: $450,000

The defendant physician could provide no documentation that he discussed with the patient his abnormal PSA test result of 7, recommended a urology consultation or advised the patient to return for follow up. The medical record should have included this information, as well as the patient’s decision. If the patient chose an inappropriate course or refused treatment, the record should have reflected the physician’s warnings about possible specific consequences of a potential delay in diagnosing prostate cancer.

CASE #2
Allegation: Failure to diagnose and treat melanoma, resulting in the wrongful death of a 38-year-old woman
Indemnity paid: $500,000

The defendant’s entire documented treatment for this patient consisted of six scant entries in the medical record. He contended that because he was the only treating physician, there was no need for “excessive” documentation. The case would have been completely defensible from a causation standpoint had there been good documentation in the record.

CASE #3:
Allegation: Failure to diagnose appendicitis and to refer for stat surgical intervention, resulting in the wrongful death of a 13-year-old girl
Indemnity paid: $250,000

The patient was seen three times in a one-week period. Although she exhibited worsening symptoms on each visit, after the third visit the girl was sent home, where she died a few hours later. None of the defendant’s discussions with the girl’s father were documented in the record; there was no record of any review of the patient’s CBC results with the patient or her father; a medication found in the girl’s system during the autopsy had not been mentioned in the record; and a late entry regarding the first physical exam was made more than a month after the fact. At a minimum, the lack of documentation indicated a pattern of insufficient attention to the patient’s medical condition, despite mounting objective and subjective symptoms pointing toward appendicitis.

CASE #4
Allegation: Failure to stabilize, admit or seek a neurological consult, resulting in the wrongful death of a 24-year-old man
Indemnity paid: $7.2 million

The plaintiff had been diagnosed with a cerebral aneurysm and was scheduled for an angiogram in preparation for surgery. However, before the scheduled procedure, he went to the hospital complaining of severe headaches. An ER physician later testified that the patient refused her recommendation to have a spinal tap and left the hospital against her advice. However, she could present no evidence to support her position.

Any discussion of the importance of compliance, as well as any explanation of the dangers of noncompliance, should have been recorded. Also, names of any witnesses to the discussion, efforts to gain compliance through third parties (such as family members), signed “Against Medical Advice” forms and corroborating notes from the attending nurse should have been noted in the medical record.

The legibility of documented records— including prescriptions—can also be crucial to a solid malpractice defense, as the following case illustrates.

CASE #5
Allegation: Wrongful death of a 42-year-old man due to a medication mix-up
Indemnity paid: $225,000

The pharmacist misread the defendant’s prescription due to illegible handwriting. As a result, the patient was given the wrong medication at a level eight times the correct dosage.

If you do not have access to an electronic medical record system, consider dictating your notes and having them transcribed. If you must make your entries by hand, be sure they are legible.

Maintaining complete, accurate and legible medical records will not guarantee a successful legal defense, but it is an important component of proper patient charting, one that can go a long way toward reducing your liability risk.