The legal pitfalls of patient-reviewable records

October 21, 2010

Dan TennenhouseDan Tennenhouse, MD, JD, FCLM

Should doctors write patient records so that patients can understand them? This new trend in medicine may seem inherently beneficial, but from a legal perspective, it offers a new source of potentially damaging material for attorneys who cross-examine medical witnesses.

The main reason doctors keep patient records is to ensure safe continuity of care and effective communication with the health care team. An incidental benefit is for billing and corporate compliance. (Records kept for the purpose of defending lawsuits lose their credibility because they are self-serving.)

Some doctors choose to share the record with their patients to reassure them that nothing “bad’ is being said about them, and to give patients a chance to correct errors in their medical history. However, improving the physician-patient relationship is not a proper purpose for keeping medical records.

Why must doctors be wary of “patient-reviewable” records?

  • The confused patient: “R/O malignancy.” (How many patients understand the meaning of “R/O?”)
  • The terrified patient: “Probable angina but will order cardiac consult to evaluate for Takotsubo cardiomyopathy.”
  • The frustrated patient: “No physical basis found for patient’s complaints of pain.”
  • The defensive patient: “Probable drug-seeking behavior.”
  • The embarrassed patient: “Patient’s wife called. Says he is obstinate and not taking meds regularly.”
  • The truly embarrassed patient: “Cannot rule out gonorrheal infection.”
  • The outraged patient: “Patient’s manipulative behavior is interfering with proper care.” (No patient wants to be called manipulative – especially the manipulative ones.)

Any one of the above comments in a record seen by the patient could result in 30 minutes of explaining, arguing and confrontation with the patient. Who has the time for that?

Better just to omit the comments or water them down so they don’t need discussion or lead to patient meltdown, right? Think again: The result could be a record that isn’t accurate or complete, or one that doesn’t efficiently convey the information needed for safe continuity of care.

No matter what a doctor might think, it’s just not possible to write a patient-reviewable record as honestly and completely as a record the patient will not see.

With patient-reviewable records, many omissions that might otherwise be discounted as careless can instead be characterized as deliberate because of a conflict of interest. This loss of credibility is an irresistible opportunity for any lawyer who will depose or cross-examine the clinician who wrote the record.

Lawyers should always ask medical witnesses if they write their records so that patients can read them. If they do, those records can be attacked mercilessly.

For more on patient-reviewable records, see Attorneys Medical Deskbook, 4th, section 4.17.1.

Dan Tennenhouse, MD, JD, FCLM, is a graduate of the University of Michigan School of Medicine and the University of California Hastings College of the Law. He teaches legal medicine at the University of California San Francisco School of Medicine and practices as a medical legal consultant for attorneys. Dr. Tennenhouse is the author of Attorneys Medical Deskbook, now in its fourth edition.