When an injured patient seeks legal advice about filing a medical malpractice
lawsuit, the attorney’s first task is to review the medical records. Medical
malpractice litigation is built around the medical record, which provides the only
objective record of the patient’s condition and the care provided. 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.
Records are particularly important for a physician’s defense. The patient has
injuries to show the court; the physician or other medical care practitioner has
only the medical records to prove that the injuries were not due to negligence.
If the record is incomplete, illegible, or incompetently kept, this is the health
care practitioner’s failure. Although courts and juries usually give a defendant
the benefit of the doubt on ambiguous matters, this does not extend to
ambiguities created by incompetent recordkeeping. 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