Articles and Case Studies

Medical Records a Medico Legal Perspective

03 Apr 2012

by Dr Rod Moore

MBBS (WA) Grad Dip Sp Med (UNSW), Chair Western Cases CommitteeThe need to keep good medical records is outlined in the Code of Conduct for Doctors in Australia produced by the Medical Board of Australia.

It is an essential part of professional practice that such records are kept for all patient interactions. This not only facilitates patient care and ensures continuity of care but is also a valuable resource in reducing the risk of subsequent medical negligence litigation.

The primary purpose of adequate medical record- keeping should always be its role in enhancing patient care. The subsequent benefit in protection against subsequent negligence allegations should be seenas a secondary benefit.

MDA National operates two Cases Committees, one based in Sydney and the other in Perth. These committees provide expert medical input into the management of medical negligence claims involving our Members.

In matters that come before the committees it is a recurring theme that the successful defence of matters is compromised by inadequate record-keeping. There is no doubt that a successful defence is enhanced by good record keeping.

It is worth noting a couple of age-old truisms, “if it is not recorded it did not happen” and “good records equals good defence, poor records equals poor defence and no records equals no defence”.

The existence of a note made contemporaneously at the time of the consultation is often the difference between the court preferring the doctor’s evidence and that of the patient/plaintiff in medical negligence claims.

There have been instances before the committees where doctors have retrospectively added a note which has completely compromised our ability to defend a claim. Even if the subsequent addition is an accurate note of matters which occurred at the time of the consultation, its retrospective nature may engender a negative response from the courts.

Record keeping needs to extend beyond the actual physical consultation to include communication with patients via telephone, SMS or email. Unsuccessful attempts to contact a patient, for instance to convey a test result, need to be accurately documented.

Another recurring theme in claims is the follow up of patients and their tests results. Adequate medical records and practice systems to ensure test results are actually reviewed by the requesting practitioner and communicated to the patient are essential.

What have the courts said about the need to keep medical records?

Kite v Malycha [1998] 71 SASR 321

This claim involved an allegation of delay in diagnosis of breast cancer involving a surgeon, Dr Malycha. The surgeon had seen the 31 year old patient for assessment of a tender and enlarging lump in her left axilla. The surgeon performed a fine needle aspiration (FNA) cytology, although he failed to make any reference to this procedure in his medical records. The surgeon made a provisional diagnosis of suppurative hidradenitis. He asked the patient to phone the practice within a few days to obtain the FNA result and attend his rooms for review in a few weeks’ time.

The patient did not phone for the test result, nor did she attend the follow up appointment. The FNA result, which revealed the presence of cancer, was not received by the surgeon.

When the patient did not attend her follow up appointment, the surgeon reviewed the medical records and, in the absence of any notation in the medical records, he did not recall that FNA cytology had been performed.

The claim proceeded to trial and the court found the surgeon was negligent in failing to follow up and obtain the cytology report, and to act on it in a timely fashion. The patient was awarded damages in excess of $500,000.

The court stated “Dr Malycha did not make a note of having performed the fine needle aspiration. He said that it was his usual practice to make such a note when he performed that procedure. He was unable to explain why he did not do so on this occasion”.

Tai v Hatzistavrou [1999] NSWCA 306

This claim involved an allegation of delay in diagnosis of ovarian cancer. The defendant was a gynaecologist,

Dr Tai. Dr Tai had sent a request to the local hospital for the patient to be admitted for investigation of PV bleeding but the request went astray and the patient was not admitted. She was later diagnosed with metastatic ovarian cancer.

At the trial, Dr Tai gave evidence that he had asked the patient to contact him if she had not received notification from the hospital of her admission date within a few months; however, there was no record of this advice in the medical records.

The court noted “Dr Tai fairly and honestly admitted in evidence that he had no recollection, apart from what was written in his notes, of any particular conversation he may have had with the plaintiff. Dr Tai is a busy gynaecologist seeing up to 30 patients in one session. He stated that his consultation time for each patient was usually 15 minutes. Whilst he relies on his notes, they are very brief and do not note all that he did or said. He gave evidence as to his usual practice”.

Ultimately, the court preferred the patient’s version of events that she had not been advised to follow up the referral within a few months and judgment was entered against the gynaecologist.

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