• Caring For the Chart
  • May 4, 2012 | Authors: Keri Marmorek; Darshan I. Patel
  • Law Firm: Heidell, Pittoni, Murphy & Bach, LLP - New York Office
  • Recently, New York’s Appellate Division ruled that a pre-printed consent form, which merely listed the general risks of a scheduled surgery, was insufficient on its face to defeat a claim for lack of informed consent.  Toby v. Bushkin, 72 A.D.3d 810 (2d Dep’t 2010).  The consent form advised the plaintiff that she would sustain “scarring” as a result of the subject cosmetic surgery but provided no details as to the potential “location, nature, extent or appearance of the scars.”

    Busy practitioners do not always have much time to record their interactions with patients.  Unfortunately, medical malpractice cases often turn on the quality of the documentation in a patient’s chart.  When a physician does not memorialize an important conversation, he or she will need to convince the court and jury - based solely on memory often many years after the fact - that there was such a conversation.  Similarly, while physicians regularly chart their clinical findings, they do not always note the consideration of differential diagnoses or their follow up instructions to patients.  These areas often become crucial in defending malpractice actions.  In the absence of a proper record, the jury must decide which witness - the physician or his patient - has a better memory or is more credible.

    Devoting a few minutes to carefully organizing and drafting a note can help you avoid a lawsuit or dramatically improve your chances of success if there is litigation.  Here are some practice pointers.

    To avoid or defeat a claim of lack of informed consent, a physician must list more than the general risks of the procedure.  All consent documents should be tailored for the specific procedure at issue.  Use lay language and include specific risks to the individual patient based on the patient’s unique medical history.  Most hospital forms have space for physicians to supplement the pre-printed language.  Add the information there.  Specialists should devise their own forms for procedures they frequently perform on their patients.

    It is also important to document any other discussions pertaining to informed consent.  In many hospitals, informed consent is obtained by a resident.  The attending physician should 1) follow up with the patient to see if they have additional questions; and 2) document the specific the risks, benefits and alternatives of the treatment that were addressed during this conversation.  Remember, the attending physician ultimately is responsible for obtaining a truly “informed” consent.

    If a patient declines to follow a recommended course of treatment, create a detailed note of your conversation preceding this decision.  When a patient refuses care and treatment that might have lead to a definitive diagnosis, this should be included in your note. This can be as simple as drafting the following: “possible diagnoses including brain tumor or infectious abscess and potential treatment options, including immediate hospitalization, discussed with patient,” and “patient stated they understood but refused admission.”  Such a note should be signed by a patient when the patient has made decisions against medical advice (AMA).  Similarly, many office visits involve discussions with patients regarding further medications, tests or return visits.  In the event of litigation, documenting these conversations will place the burden on the plaintiff to explain why he or she did not follow your medical advice.  There are tactful and simple ways to chart the fact that a patient is non-compliant.

    While it may appear obvious to a physician why he or she did not order a test, consultation or a particular course of treatment, it is extremely beneficial to document the reason for the decision.  For instance, if a radiology study is not being recommended to rule out appendicitis, it is worth noting that the patient did not manifest any lower right quadrant pain or rebound tenderness consistent with that condition.  Similarly, if a physician rules out a viable diagnosis that may seem consistent with the patient's clinical picture, it is helpful to document that the condition was considered and ruled out for reasons stated in the note.  During lawsuits, plaintiff’s counsel often challenges the physician’s differential diagnosis.  In cases where a variety of conditions were being considered, it is important to document this process and any significant discussions with the patient.  At the conclusion of trial testimony, a jury may be instructed that a physician may not be liable for an error in judgment if he/she does what he/she decides is best after a careful evaluation of the medical/clinical picture.  Careful recordkeeping is the best way to prove that all diagnoses and treatment options were conside