First published in The Lawyers Weekly April 2, 2004, Vol. 23, No.4 7
Physicians' handwriting and abbreviations are more frustrating than humorous for
personal injury litigators. The gulf between guidelines and Canadian community
standards was never wider.
Structure: Physicians are exhorted to date, time and sign both
contemporaneous records and late entries. Entries should not only be readable,
but easily decipherable on photocopies. A single line should be written through
any error, leaving it legible.
Quotations should be attributed to the speaker — patient, family member or other
third party. Phone contacts should always be recorded.
Content: Clinicians are encouraged to maintain objectivity and avoid
personal remarks about the patient, to moderate adjectives and show the thought
processes behind conclusions. Minimally, each doctor/patient encounter should
document history, examination, diagnostic formulation, planned action, including
medication, follow-up, investigations, and explanations.
Arguably, history and examination should include relevant negative enquiry and
findings.
Nursing guidelines stress consistency of documentation, prompt recording,
avoidance of abbreviations, jargon, meaningless phrases, and irrelevant
speculation.
Wherever possible, the facts should be documented with the involvement and
understanding of the patient, client or caregiver, and should provide clear
evidence of the care planned, the decisions made, the care delivered and the
information shared.
As every personal injury litigator knows only too well, these exhortations are
far removed from daily reality.
Legibility of physicians’ handwriting may be a long-standing joke, but it can
be a major factor in medication errors and compromised continuity of medical
care.
In reading colleagues’ clinical notes, most physicians have an edge over most
lawyers because they can better anticipate what should be in the record.
All too often, the office-based record is more an aide memoire for the
individual physician than a means of communicating with colleagues.
Most abbreviations are universally agreed on by physicians — at least those in a
given specialty.
However, others may be entirely idiosyncratic, and may even be seriously
ambiguous.
For instance IUD can mean both Intra-Uterine Death and Intra- Uterine
contraceptive Device.
Formula history and physical examination are well-known to medico-legal
reviewers. An apparent attempt to “cover the bases” can at worst appear mindless
and unfocused. Entirely irrelevant verbiage replaces detail essential to the
diagnostic analysis.
While case-law has long established that habitual surgical routine need not be
detailed in an operative report, plaintiff counsel may make adverse inferences
when essential negative findings are not recorded.
Some lawyers may not appreciate that “this pleasant man/woman” can, depending on
the writer, signify anything from “attractive and likeable” to “obnoxious and
demanding.”
Defensive falsification of records is more often than not counter-productive,
and simply compounds the error. In the emotion following discovery of an adverse
outcome, caregivers who attempt to sanitize their previous clinical
documentation usually inadvertently make matters worse for themselves.
The majority of physicians and nurses do not, of course, attempt to insert
unacknowledged revisions. Sometimes, however, details that are not documented
contemporaneously are then apparently recalled by physician hours, days — or
even years — after the event.
When a medical expert witness presumes that something happened even though it
was not documented, this is a hallmark sign of defence-orientation.
Even when such specialists are explicitly asked to assume that “if it isn’t
there, it didn’t happen,” their mindset prevents them from doing so.
When referring in a consultation report to previous treatment by a known
colleague, failing to name him or her may signify disapproval of the colleague’s
opinion or treatment.
Meticulous and repetitive nursing documentation of what a physician was told
often signifies the nurse’s belief that the physician was apparently not
listening or did not respond appropriately.
Clinical information on requisitions for diagnostic imaging and anatomical
pathology are filed, not in the general hospital records, but in the respective
hospital departments. Such information may be crucial in an action for medical
malpractice but is not provided with copies of the hospital records and must be
explicitly requested.
Information that should be on the record but is omitted may represent an attempt
to protect a colleague who has made an error. Watch for a carefully worded but
vague description from a writer who is generally precise and detailed.
The defendant’s adoption of diagnoses or medical terminology that are not
supported by clinical findings may be an attempt to persuade the reader to view
a mistake in a favourable light. The medico-legal reader must be ready to
challenge the validity of such wording, rather than assume that it is justified.
Post-operative follow-up notes sometimes include unwarranted comments by a
medical malpractice defendant about improvement in an adverse outcome or
expectation of continuing improvement. These should be discounted as clinical
assessments, for they are often little more than wishful thinking.
When surgical error is suspected, routinely look for the date and time the
operative note was dictated, especially when defensive comments are present in
the narrative