Thorough documentation is good medicine and the plaintiff's attorney's worst enemy. Unfortunately, too many doctors neglect their patient records.

Sometimes years pass before a jury is asked to determine which party has more credibility. Without good documentation, a case can come down to the doctor's recollection vs the patient's. And who's apt to be more convincing: the patient, who suffered a life-altering outcome due to the doctor's perceived negligence, or the doctor, for whom the office visit was one of 28 that day?

"If you didn't chart something, the presumption is that it didn't happen," says Semanoff. And you've heard it a million times: To protect yourself in case you're sued, you need to keep detailed records. Clear charting can even prevent lawsuits, say malpractice experts.

But no matter how often doctors hear advice on documentation, sloppy work persists. The cases that follow—all recent ones—show how common problems such as illegible handwriting and skimpy notes can invite lawsuits and torpedo defenses—even when the case against the doctor appears to be unfounded.

Did the doctor make a referral?

Whether a Philadelphia FP told his patient to see a cardiologist was the key issue in a case involving a 59-year-old woman with coronary artery disease. The patient claimed that if only she'd been referred to a cardiologist, her diagnosis and treatment wouldn't have been delayed. She could have had a stress test and cardiac catheterization, and would have avoided two heart attacks. She wouldn't have had to undergo quadruple coronary bypass surgery, either; an angioplasty would have been enough. The plaintiff, who was permanently disabled when she brought suit, estimated that her future lost wages would amount to $400,000.

The patient claimed that she was never given a written referral, which her health plan required. An expert witness said that a cardiology referral was the standard of care.

But the patient was told to see a cardiologist, insisted the defendant FP. She'd been instructed on many occasions to follow up with one and to have an echocardiogram, but she had ignored the recommendation. Moreover, the FP's cardiology expert testified that because of the nature of the patient's disease, she would have needed open-heart surgery regardless of when her condition was diagnosed.

The chart showed no referral, but, fortunately for the doctor, it did contain references to the plaintiff's fear of tests and noncompliance regarding certain medications. The jury found for the defense.

The clear notes regarding the patient's noncompliance may have swung the decision in the doctor's favor, says Philadelphia attorney Dean F. Murtagh, who represented the defendant physician. But the doctor might have avoided the lawsuit altogether if she had documented the referral in the chart.

"During the visit in question, she had made only a cryptic note saying, 'Needs cardiology,' " says Murtagh. "To her, the note meant 'I told this patient to go to a cardiologist.' " But during litigation, the lawyers argued over what the word "needs" meant.

Don't be blasé, even with friends

Documenting referrals is critical even when you know the patient socially, as an allergist in New Jersey can attest. The patient, a woman with a very runny nose, was a friend of the doctor's and had consulted him after an ENT told her that she had allergies. The allergist found no evidence to support that diagnosis, however, and says he recommended that she go to another ENT. The allergist didn't write his referral on the chart.

Whether he made the referral became a key issue in the subsequent malpractice case. When asked whether he had documented the referral in the chart, the allergist said that he hadn't because he'd told the patient to consult an ENT on many occasions—when he'd seen her socially, when she'd come into the office, and after he'd finished the allergy testing. He hadn't filled out a referral slip for the patient, he said, because he'd left it up to her to decide which ENT she wanted to see. The patient never followed up with another specialist.

Turns out the "runny nose" was a cerebrospinal fluid leak, and the patient wound up with spinal meningitis. A jury ultimately delivered a judgment against the allergist and awarded the patient $10 million.

"There's no substitute for good documentation," says attorney Steven I. Kern of Bridgewater, NJ. "Cases are won and lost on that issue." To be blasé about charting displays a certain arrogance and a lack of sensitivity to the record's import, he says.

"The chart used to be a reminder to the doctor—it wasn't considered a legal document," says Kern. "But today, you have to view the record as a legal document for a potential medical malpractice case."

Poor penmanship can sign your fate

For a Kaiser Foundation Healthcare surgeon in Los Angeles, sloppy handwriting led to malpractice misery. His patient, a 35-year-old woman, had discovered a lump in her left breast. Her physician had ordered an immediate mammogram and a surgical consult. The mammogram had shown nothing, so an ultrasound was ordered. The radiologist had read the result as normal.

The HMO surgeon couldn't find a mass, either. He made a notation on the chart that the patient should return for follow-up. What he didn't make clear in the note was when she should return. Depending on which testimony is to be believed, the surgeon ordered the patient either to return "PRN" or a month later, in "Jun."

The patient didn't return until a year later, when her breast mass had grown noticeably bigger: The surgeon noted an 8-cm-by-8-cm mass, and a biopsy revealed a high-grade infiltrating ductal carcinoma.

The patient sought treatment at UCLA, and after neoadjuvant chemotherapy and breast-conserving surgery, has lingering cancer cells in the breast and two metastatic axillary lymph nodes. She sued the Kaiser surgeon for lost earnings and damages. The case wound up in arbitration, and the patient was awarded $842,680.

"The doctor's illegible handwriting was central to the case," says plaintiff's attorney Daniel M. Hodes of Newport Beach, CA. His advice: "If you give follow-up instruction, document it clearly so others can read your note—especially if it's crucial. This is not the place to save time."

Which would you rather fit into your schedule: a few extra minutes of documentation each day, or months of trial-related agony down the road?

Altering records destroys credibility

"The surest way to lose big time is to doctor your record after you receive notice of a lawsuit," says James J. Mangraviti Jr, an attorney in Peabody, MA. "Your credibility is destroyed, your malpractice insurance may not cover you, and you may be liable for punitive damages."

By embellishing a 60-year-old patient's record, an internist who was sued for wrongful death by the man's estate made a nonmeritorious case viable. The doctor had been seeing the patient for more than nine years for coronary insufficiency. The man repeatedly refused to follow the doctor's recommendation that he have a cardiac catheterization. Only after a cardiac crisis did the patient agree to the procedure. The catheterization was performed appropriately, but the patient died several hours afterward due to cardiogenic shock and acute MI.

His estate alleged that the internist was negligent for failing to perform the catheterization prior to the cardiac crisis. The physician testified that he'd repeatedly urged the patient to undergo catheterization but the patient kept postponing the procedure.

"The case was clearly nonmeritorious," says Mangraviti, "but foolishly, after being sued, the doctor altered his records, documenting conversations urging catheterization. The conversations had actually taken place, but the doctor hadn't charted them." The alterations were easily detected by forensic experts, and the doctor was forced to settle an otherwise defensible case.

"Malpractice insurers, medical societies, attorneys, and risk managers constantly implore physicians to keep detailed records," says Lee J. Johnson, a healthcare attorney in Mount Kisco, NY, "but we routinely see defensible cases that have to be settled because the doctors were poor record-keepers. You can never document too much."

Jurors don't expect a doctor to remember every patient who's walked through the door, but when it comes down to a credibility contest, the patient's testimony tends to carry weight. All you've got is the medical record to save you.

Documentation rules to live by Spell out your advice for the patient. "I wouldn't just note on the chart that you're referring your patient to a specialist," says Harry Rein, an internist, attorney, and former judge in Longwood, FL. "Write the advice or referral on a prescription form, and make two copies. Put one in your chart, and hand the original to the patient." Have your receptionist make the initial call to the specialist's office to introduce the patient. Note the call in your chart, and have the receptionist initial the entry. That staffer then is a witness that the referral was made, and the other office should have a record that a call was received. Note a patient's noncompliance. Suppose a physician tells a patient who calls with chest pain to meet him in the ED. The patient doesn't show. "I'd call the patient and tell him why it's important for him to be seen promptly, even if the pain has diminished," says James Lewis Griffith Sr., a malpractice attorney in Philadelphia. "If he still refused to go, I'd make a note on the chart: 'Refused to come to ED. I called and warned him of dire consequences. The risk is on his shoulders.' " Don't use any exclamation points in those notes, frustrated as you might be. A jury won't appreciate them. Chart negative findings. Include enough detail so that someone reading your notes years later can understand your thinking. "For example, which of these two notes is likely to be more effective in court?" asks Lee J. Johnson, a healthcare attorney in Mount Kisco, NY: " 'Patient in apparent good health,' or 'I reviewed all systems. Patient denies any complaints.' The first statement is a subjective perception that's almost meaningless. The second says first, that you asked the patient if he was having any problems, and second, that the patient said nothing was wrong." Don't tolerate bad penmanship. A physician with illegible handwriting is a disaster waiting to happen. A cavalier attitude increases the risk of injury to patients and lawsuits that could result in sanctions and financial damages against all the doctors in your group. Any of them can be named as co-defendant, even if he or she didn't participate in a patient's treatment. When you give advice—in person, over the telephone, or via e-mail—write it in the chart, and clearly. Do it so that others, not just you, can read it. Initial your notes. "Identification of entries on the chart can be a crucial piece of evidence," says Johnson. "Never leave doubt about who wrote your progress notes." Chart prescription refills. "Not doing so could be a liability trap," says Johnson. "For instance, a patient may be addicted to a pain killer. If she calls repeatedly to renew the same prescription, then suffers from an overdose, you could be held responsible." Chart your rationale for a diagnosis. Juries can be remarkably forgiving of honest mistakes, as long as you demonstrate that you were alert and attentive. Protect yourself against denials. Note objectively on a patient's chart that authorization (for an extended hospital stay, for example) was denied by the patient's HMO and that you informed the patient that you believe treatment is necessary. Help the patient with appeals he or she makes to the HMO, and document your efforts. Even if you just considered a test, note it. "Write a note like 'Doubt pulmonary embolus' if you decide not to order a test for a particular disease," says Johnson. "But don't stop there. Explain your reasoning, too." Stating the doubt raises the question of why you ruled out the diagnosis. Make sure you answer it.