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Strong records – strong defence

02 May 2018
A common source of frustration from members on the receiving end of a claim is that we expect some unattainable standard of record-keeping. 

Poor record-keeping is in itself evidence of poor clinical practice: it is substandard practice to keep substandard records. In the event of a claim or complaint, you will be starting from a weakened position if your records are poor or non-existent.

Why is good record-keeping so important?

  • When taking evidence from a member in a claim, we look at:

    - What the member actually recalls about the consultation and patient 
    - What the clinical records say about the consultation
    - What a member’s customary practice is when seeing a patient presenting with that particular complaint.

  • When a patient brings a claim, every single line of the records will be pored over by a team of attorneys and experts (for both parties), looking for gaps. That is the reality of trying to reconstruct (a) what happened (as a matter of fact) and (b) whether reasonable skill and care was exercised. 
  • In the absence of good records, it’s clear that there is little to nothing to support the member’s version of events. It is their evidence vs the patient’s. The member has treated thousands of patients in the interim – and several years may have elapsed. The patient, conversely, may only have seen the member on one or two occasions. In the absence of notes, whose recollection of one consultation is likely to be more accurate?
  • Just because something isn’t written down doesn’t mean it didn’t happen. But it’s a matter of credibility and weight to be attached to the evidence. For example, when discussing consent, if there’s no consent form and no record in the notes about what was discussed, how do you convince a court that you did have the patient’s informed consent to treatment?  

Why is so much weight placed on the content of the medical records?
  • Put simply, because they are contemporaneous evidence. They were made at the time of the treatment/incident in question, so the court attaches a great deal of weight on them as a piece of evidence – bearing in mind the events being examined could have taken place years ago, and memories fade. 

How do incomplete records influence the outcome of a claim?
  • A good standard of medical record-keeping really can make the difference between a case being defended and being settled. With poor or no records, it is much easier for the court to prefer the patient’s evidence about what factually happened.
  • Expert witnesses are more likely to be supportive of the care provided when the member’s evidence is preferred. In the absence of records to support the member’s evidence, there is a significant vulnerability in defending the claim.  

Reconstructing records
  • If records are amended later on, that should be clearly stated and the date/time of the amendment should be recorded. This is to avoid any suggestion that this was an attempt to doctor the records.  
  • Reconstructing records after the event, and passing them off as contemporaneous, always ends up coming to light. High value claims have had to be settled because of vulnerabilities over these types of reconstructed records. 
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