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Medical Records as a Plaintiff's Weapon

When an injured patient seeks legal advice about filing a medical malpractice lawsuit, the attorney's first task is to review the medical records. The attorney is looking for specific acts of negligence and at the overall quality of the record. The strongest medical malpractice lawsuits are based on well-documented, specific acts of negligence. In most cases, however, the negligence is inferred from documented and undocumented events. If the patient's case depends at least partially on assuming that certain events were not recorded, the attorney must be able to cast doubt on the credibility of the record.

The least credible records are those that are internally inconsistent--for example, the physician's progress notes report that the patient was doing well and improving steadily, but the nurses' records indicate that the patient had developed a high fever and appeared to have a major infection. More commonly, the credibility of the records is attacked through demonstrating that it is incomplete. If it is clear that medically important information is missing from the record, then it is easier to convince a jury that the missing information supports the patient's claims.

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