Risk Management

When a Claim Is Filed: Good Documentation Is Your Best Defense

By Jerome W. Bettman Sr., MD

Argus, October, 1992

The best prophylactic against a malpractice claim is good rapport. The best defense, once a claim is filed, is good documentation.

Defense attorneys complain that if they can’t defend the records, they can’t defend the doctor. On the other hand, plaintiff attorneys, when confronted with good documentation, probably will not pursue the case.

Good records are important for several reasons:

  • The physician wrote the records and juries usually believe that what was written was done.
  • The trial may occur years after the fact. Neither the doctor nor the patient remembers much, but the records were written at the time.
  • Jurors may sit through weeks of benumbing testimony which often they don’t remember or understand, but the records may be taken into the jury room with them.
  • Patients tend not to recall that portion of the consent information which addresses the possibility of complications or adverse outcomes. For this reason, proper documentation is essential.

Three studies demonstrated this failure of patients to recall complications stated in the informed consent. These references may constitute an important defense should a patient deny that such information was shared with them:

What Patients Recall of the Preoperative Discussion After Retinal Detachment Surgery (Priluck I, et al. Am J Ophthal. 1979; 87:620);

Informed Consent Recall by Patients Tested Postoperatively (Robinson G and Merav A. Bull Am Coll Surgeons. 1977; 62:7);

Observations on the Myth of Informed Consent (Leeb D, et al. Plastic and Reconstructive Surgery. 1976; 58:280).

What Is the Best Method to Document the Informed Consent Process?

A brief note written in the ophthalmologist’s own hand which says that “the procedure, alternatives, complications and risks, including the anesthesia risks, were explained to the patient and the patient appeared to understand” may be adequate for minor office procedures.For major procedures, however, it is probably wise to also use a pre-established consent form, although one cannot be certain how dependable these will be in court.

This is well illustrated by two nearly identical RK cases brought against the same surgeon. The consent form used by the surgeon in both cases was identical and was deemed adequate.In one case, it was determined that the patient must have been properly informed because he signed the concluding statement that he had read and understood the form. The defense won.In the other case, the plaintiff won, partially because it was held that the patient felt he had to sign the form but he had not truly understood the information.

A third method of documentation may be helpful in those unusual cases in which the patient has good vision preoperatively and will have poorer vision postoperatively. This may occur in a patient who has 20/20 preoperative vision with a neovascular membrane encroaching upon the fovea. If a laser is not used, central acuity will be lost; if it is used, the vision will almost certainly be less than 20/20. After informing the patient and asking for feedback to be certain the patient understands, the ophthalmologist can ask the patient to write in his or her own chart what he or she understands. This is documentation the patient cannot deny since it is written in the patient’s own hand.

What Constitutes Good Record Keeping?

The record should document everything that is meaningful to the patient’s illness, including unusual occurrences, complications, the patient’s or family’s worries, discharge instructions and follow-up information. These should be written into the record at the time they occur. Do not rely on recall.

The record should be consistent. If an ophthalmologist records the appearance of the optic disc on a number of visits and omits it on a few, it could be inferred that he or she did not look at the disc on the visits in which its appearance is omitted.

The record is the only evidence of the ophthalmologist’s thought processes at the time. They should be recorded in a few carefully chosen words without editorializing, rationalizing or making excuses. Personal remarks about the patient or the patient’s family do not belong in the record, nor does criticism of other doctors.

Good documentation neither begins nor ends with the patient record. It usually starts with the receptionist who must be trained to permanently record missed appointments, cancellations, phone calls and patients’ unusual concerns. Nurses’ notes in the hospital record are another form of documentation and should not be overlooked. Failure to record the doctor’s visit may be significant to a plaintiff’s attorney.Do not sign the chart unless satisfied that it is accurate.

In some cases, a form of documentation may occur before any contact is made with the office. Television appearances by a surgeon are considered a form of documentation. If the physician makes unreasonable claims for surgical success, the plaintiff’s attorney may obtain a copy of the tape and use it effectively in the courtroom.

To Whom Does the Record Belong?

It belongs to the physician, but the patient and, with the patient’s permission, his or her attorney are entitled to the information in it.




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