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At Your Defense: Turning Colleagues into Co-Defendants: Damning Documentation

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000422882.63071.70
At Your Defense

Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.





I remember my first “SOAP” note. I was so proud of it. As a diligent medical student, I covered all the bases: the complaint, the physical exam, and the treatment plan. My notes became more sophisticated during residency, delving into the complex nature of the critically ill patient. I noticed something when I started working in the “real world” as an ED attending: some doctors don't pull any punches in the medical record when they disagree with the emergency physician's care. The unbridled editorializing seemed out of place at the least and sometimes downright libelous. I thought to myself, “This would look awful blown up on PowerPoint in front of a jury.”

I am going to let physicians in on a big secret that highlights a major difference in the approach of professionalism between law and medicine. Brace yourselves: lawyers know how to protect the field of law much better than doctors know how to protect the field of medicine. Several potential explanations for this: legal training provides lawyers with the means to protect themselves and their livelihood; physicians have no meaningful legal education in medical school or residency. My law school experience, which immersed me in thousands of hours devoted to persuasive writing, gave me insight to how powerful writing can be. My medical training in contrast did not teach me that what a physician writes in the medical chart may create liability that otherwise would not.

The blame game has no place in charting. Protecting against malpractice claims requires taking the blame game out of medical documentation. Some physicians have the misconception that blaming diverts risk away from them. Colleagues who point fingers at each other in the medical record, however, can end up as co-defendants in a negligence action. Placing blame in the medical record can only backfire. James Schaeffer, an experienced medical malpractice defense attorney from Boyce Schaeffer LLP, cautions that “statements from patients and family members that are both irrelevant to patient care and critical of another physician should not be included because that's ‘red meat’ to a plaintiff's lawyer.”

A plaintiff's attorney will take advantage of blaming comments and use them to pit defendants against each other in deposition and on cross-examination. If the documenting physician changes his mind about the other physician after knowing more facts about the case, then the documenting physician will be discredited. Co-defendants who point fingers at each other tend to prove negligence. All that's left for the jury is assigning comparative fault for each co-defendant.

Blaming other physicians in the medical record serves no useful purpose for the patient. Documentation of medical decision-making should be neutral, and reflect the analytical stutter-stepping involved in creating a diagnostic and treatment plan for a complex medical condition. Physicians and subspecialists should acknowledge the diagnostic dilemma experienced by the other physicians involved. Unfortunately, physicians too often succumb to hindsight bias, and improperly criticize the care provided by other physicians, suggesting that they negligently missed a diagnosis or provided substandard care. Yet what these physicians fail to realize and fail to document in the chart is that the diagnosis may have been more obscure earlier in the patient's disease process and therefore much more challenging to diagnose or treat.

Defensible documentation of “high-risk cases.” You know that feeling when you walk into a patient's room, and you immediately wished you hadn't? That sixth sense is telling you something: this is going to be a high-risk case. Identifying a high-risk case can be used to your advantage because that information gives you a heads-up that you need to be particularly thorough in your documentation. The medical chart can be used as a shield of defense to demonstrate that you performed a complete physical exam, considered the differential diagnosis, and frequently reassessed your patient and discussed the treatment plan with consultants and admitting doctors in a timely manner.

Some practices add credibility and defensibility to the medical chart. Make sure the chart is completed in real time without any delay. Charting completed on the day of the patient visit has the highest probative value in the eyes of the court. Discuss the treatment plan with the treating nurse to minimize the risk of discordance between the records of the physician and nurse. Too often malpractice cases hinge on a critically discordant fact, such as a patient's pain level, an abnormal vital sign, or the time a nurse documented a change of condition.

Altering the medical record in anticipation of litigation, on the other hand, is viewed by the courts as self-serving and unreliable, and should be avoided. Mr. Schaeffer recommends that a physician chart in his usual manner because a plaintiff's attorney will ask the documenting physician if he thought he was going to get sued when he charted. A plaintiff's attorney uses this question to discredit the documenting physician by showing that his charting is self-serving and not to be trusted.

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