Matters of record

Good notes make good medicine – and they can also be invaluable in cases of clinical negligence. Here are some tips from medico-legal adviser Dr Gail Gilmartin 

THERE is an adage in medico-legal practice: “poor records, poor defence; no records, no defence”. This applies equally well to both of the scenarios discussed below which are based on real cases from the files at MDDUS.

Case 1

A young GP is called out to the home of a 15- year-old girl complaining of severe headache, “shivers” and pains in her legs and back. The GP checks the patient’s temperature which is elevated and examines the girl’s limbs for any signs of rash or bruising and finds none. Written notes from the consultation offer no diagnosis and mention only “elevated temperature” and the GP’s recommendation that the patient take analgesics. Four hours later a different GP examines the girl and finds evidence of purpuric rash on her arms and legs. Investigative tests later confirm meningococcal septicaemia. The girl survives but with below-knee amputations of both legs.

Case 2

A 72-year-old man with a pharyngeal pouch is referred to hospital. Surgery is advised and in the course of the operation there is a minor complication and the patient is left with a paralysed left vocal cord. A letter of claim is later received by the surgeon from solicitors acting on behalf of the patient who claims there was no discussion of the potential risks of the procedure. The surgeon disputes this but examination of the consent form reveals no record any such discussion.

See case analysis below.

Not a legal document but…

It’s important that you establish the habit of good note taking at the start of your career as a healthcare professional. Clear, concise and accurate notes are important for several reasons:

• Notes provide an account of the patient’s management: such an account may prove valuable decades from now.

• Notes are key means of communication between health professionals.

• Notes provide information for audit and research.

• Notes constitute a record of patient care that may be used in legal proceedings.

Well-kept notes should, ideally, allow a reader to accurately reconstruct the facts and logic in a case, years after they were written. Good notes are also invaluable in defending against charges of clinical negligence. That is not to say that notes are intended to be a legal record – the prime function is to record and communicate the information that those providing care need to know. But if you keep a good clinical record, it’s likely to be a good legal record too.

Key information

Note taking obviously varies between professions and specialties but generally a full patient record will contain accurate notes on:

History: as applies to the condition. Provide patient responses to direct questions and also relevant past history including concurrent illnesses, medications and allergies; review previous notes where relevant.

Examination of the patient: include both positive and negative findings. Record all relevant observations and measurements (e.g. temperature, BP)

Diagnosis: clear, concise statement. Justify how the conclusion was reached and state any uncertainties or differentials.

Investigations: detail and justify.

Management: record drugs prescribed/ administered and dosage and other treatments.

Follow-up and referral: include details of follow-up tests, future appointments and referrals.

Patient information: include details of discussions regarding risk-benefit , treatment plan, prognosis, etc.

Consent: record consent given, ensuring informed by above discussions.

Fundamental questions

From a medico-legal perspective all notes should answer some fundamental questions:

Who? Notes should obviously identify the patient (name, date of birth, hospital number if relevant, address). They should also clearly identify the doctor who made the note, along with a signature to verify this.

When? Record when the patient was seen, the test done, the blood taken, the drug given, etc. Note the date and time of the event, and also when the actual record or note was made if there has been a significant time lapse (hours, days). Detail the reasons for the delay in making the record.

What? Record what was done, said, instructed, observed, checked.

Why? It can be important to justify some decisions in your notes. Why are you calling a more senior colleague? Why are you concerned? This can be very important because it will perhaps determine future assessment of the urgency or seriousness with which a situation was treated.

Memory is not reliable

Another adage to keep in mind is “If it wasn’t written down, it wasn’t done”. Notes are always more valuable than memory in a legal context. How many patients will a doctor see in one session or one week or over a year? To recall the detailed circumstances of a single case would be exceptional (unless particularly rare or traumatic). Good notes also mean that a court will not need to make an assessment of your credibility as a witness; the notes will corroborate your evidence. So start developing good practice now in note taking – it will be an essential skill in your later training and future career.

Top note-taking tips

• Ensure notes are legible – write in black ink, and use capital letters or type if your writing is not clear.

• Ensure notes are contemporaneous – write up notes as soon as possible after an event.

• Use only universally agreed medical and dental abbreviations.

• Be sure to identify other contacts cited in notes (consultant, nurse, relative, etc).

• Remember that negative results may be as important as positive ones.

• Ensure notes use neutral language and are in no way derogatory – patients or families have access.

• Changes/additions to notes should be annotated with signature and the date on which they were made. Dr Gail Gilmartin is a medico-legal adviser at MDDUS

Case analysis

Case 1. The first GP would find difficulty in answering criticisms of his actions, having not recorded the results of examinations undertaken, i.e. of the patient’s limbs (not written down, not done). He also did not offer a diagnosis or record specific findings, i.e. the patient’s temperature.

Case 2. Expert opinion in the case pointed out that recurrent laryngeal nerve palsy is a recognised complication of pharyngeal pouch surgery. However, the fact that the surgeon did not record either on the consent form or in the notes any discussion of the potential complications constituted negligence on his part. The case was settled.