Medical Negligence – Hospital Records

TGB Medical Negligence Lawyer and Partner Mal Byrne outlines 12 key situations in which hospital records can form a part of your medical negligence claim.

If you have ever been hospitalised or visited a patient in hospital, you will note that the patient’s hospital records are kept usually in a large folder which is extensively tagged and indexed to make it as easy as possible for doctors and nurses to find what they need.  Unfortunately, when copies of those notes are sent to lawyers, what we get is random pages bound together without any indexing and tagging.  Hence, piecing together the facts/history from the records is a time consuming and demanding process.  While the majority of medical negligence claims will turn on expert evidence, that expert evidence will be based on assumptions that the expert makes about the facts of the case.  Medical records are the fundamental source material for determining the facts.

While the patient, doctors and other medical staff will have their own recollections of events, the Courts will place great weight on what has been recorded in the records when making findings of fact.  It is important to point out that what is omitted from the records can be as important if not more important than the content of the records.  Failures of care are often omissions of care rather than actual care and if the patient’s case rests on an argument that something was not done, the medical negligence lawyer may be scouring the records hoping not to find something rather than find something.

In any event, difficult though the task may be, there are a number of key pieces of the puzzle in the book of hospital notes.  Here are twelve key pieces that I have identified as follows:

1. Notes of the Ambulance Officers

As ambulance officers attend the scene of an accident, the records that they make of what they find at the scene can be extremely important evidence in road trauma cases or other types of accident.  An ambulance officer who attends the scene of a road accident will usually record whether or not the patient was wearing a seatbelt.  They may record the actual sequence of events of the accident.  In medical negligence claims, evidence of ambulance officers can be vital where the patient is alleging negligence on the part of the Emergency Department of a hospital.  For example, ambulance officers will record the time of arrival at the scene, the time of departure and the time of arrival at the hospital Emergency Department.  If a patient is alleging that the Emergency Department did not provide treatment promptly enough, timelines will be very important.  Ambulance officers will record the symptoms of the patient on arrival at the scene of the accident or incident.  If those symptoms are not recorded later in the Emergency Department notes as they were overlooked, this might be important evidence.

2. Admission Notes

 When a patient is admitted to hospital either via the Emergency Department or for a routine procedure as an inpatient, the notes of the staff member admitting the patient could be important if a medical mishap occurs during that admission.  Movie buffs who have seen the classic Paul Newman film “The Verdict” which is about a medical negligence claim will recall that the vital piece of evidence that changed the course of the case was the evidence of a missing admitting nurse who tells Paul Newman’s character that she recorded on the admission note that the patient had eaten just prior to arriving at the hospital for surgery.  That evidence was critical to the case as the patient aspirated food during the subsequent operation and suffered severe brain damage.

3. Blood Tests

 Blood tests can be used to detect or rule out conditions or problems such as anaemia, infection, diabetes, alcohol toxicity and drug overdose and metabolite level.  I note that when printed results of blood tests come through, any irregularities will be marked in bold and sometimes are accompanied by recommendations regarding follow up or how the results should be interpreted.  A failure to follow up or misinterpretation of those results might be the subject of a claim.

4. Patient Consent Forms

 Where a patient is conscious and having an operative procedure or any treatment, the patient must consent to that treatment.  The consent form is the primary evidence as to whether consent was obtained.  It must be signed and dated.  It should also be properly completed with the details of the procedure concerned.  Where the procedure has a number of different methods of performance such as laparoscopic procedures versus open procedures, the consent should be specific to the type of procedure concerned.  The issue of whether or not a patient was warned about the risks of the procedure or whether or not the patient has provided informed consent is the subject of many claims.  I have noticed that the standard patient consent forms that public hospitals use in South Australia always have a line saying that the patient has been warned about the risk of the procedure and decided to go ahead.  However, I would consider it prudent for any doctor performing a procedure with some significant risks and common risks should list those risks on the form ideally and get the patient to initial that part of the form.  The absence of a signed consent form does not necessarily mean the patient did not consent to the procedure, but shifts the burden of proof on to the doctor.

5. Correspondence

 Patients with chronic health problems who attend the outpatient sections of the hospitals for regular appointments can have substantial correspondence in their file.  It is standard practice for the doctor who sees a patient at an outpatient appointment to write to the patient’s general practitioner reporting on the patient’s progress.  That letter will be in the hospital notes and also in the general practitioner’s file.  The types of claim where correspondence can be important evidence is where the patient alleges failure to follow up following a procedure or that the doctor paid insufficient attendance to symptoms that might have indicated that a complication had occurred following the procedure.

6. Discharge Summary

 Whenever a patient is discharged from hospital, the hospital prepares a summary for the patient’s general practitioner and for the file of the overall admission.  However, the discharge summary is a summary and is no substitute for going through the patient’s progress notes particularly where the reasons for discharge or the circumstances at the time of discharge are in issue.

7. Emergency Department Notes

 Many claims deal with allegations that an Emergency Department failed to recognise a serious condition and sent a patient home and then a subsequent disaster occurred.  One that comes to my mind is an instant where the patient presented with symptoms of rejection of a transplanted organ to the Emergency Department and was sent home on the basis that the examining doctor thought that the patient had a gastric infection.  The records of the symptoms recorded by the doctor and the history given by the patient to that examining doctor are critical in such cases.  Emergency Departments are often staffed by junior doctors who are inexperienced.  It is no secret that our public hospitals are overcrowded and Emergency Departments are under pressure.  Where doctors are busy and there is a lack of beds for admission, the risk is that they err on the side of sending patients home rather than admitting them in those circumstances.

8. Medication Charts

 Medication charts will not only have the name of the medication prescribed and the dose but nurses have to record each and every time the medicine is administered and at what intervals.  A failure to give medication at the prescribed home or giving too low a dose or too high a dose might be the subject of a claim if a complication occurs as a result.

9. Observation Charts

 The observation charts are charts that nurses complete recording the patient’s vital signs such as heart rate, blood pressure fluid input and output etc.  In the case of the delivery of a child, the most important observation chart is the foetal heart trace that monitors the foetal heart rate during the course of delivery.  The foetal heart monitor is the best indicator of whether the foetus is in distress during delivery.  If the foetal heart rate drops suddenly, that indicates that the foetus is in distress and that delivery may need to be accelerated by way of caesarean birth or forceps or suction.  Another example of where an observation chart could be important is if the allegation is that the patient suffered a stroke during the admission and rising blood pressure and heart rate that might have indicated the onset of a stroke were ignored.

10. Operation Records

All operating surgeons will prepare a record of the operation just after it is completed.  Complications that occurred during the procedure and how they were dealt with should be included. Sometimes, the Operation Record will include diagrams drawn by the surgeon.

11. Progress Notes

Where patients are admitted to hospital, the patient’s progress is charted by notes.  Most of the notes will be made by nurses.  The notes will have the time of the entry and observations about the patients’ vital signs and presentation even sometime some social observations.  Almost all the notes will be made by the nurse.  When a doctor examines a patient on rounds, he or she will make notes.  Other health providers who might make notes would be physiotherapists or occupation therapists.

12. Scan Reports

Where a patient is sent off for an x-ray, CT scan and MRI scan, the scan will come with a report.  It is quite interesting to note some of the things that turn up in scans that hospitals overlook.  The time that the scan report was made available to the doctor can also be vital.  I have seen patients discharged before scan reports come back and the examining doctor never reads the scan report as a result.  I have also seen scans ordered for a specific purpose where an incidental finding such as a suspicious shadow or lump is not followed up.

For a small fee, patients can obtain copies of their own public hospital notes under Freedom of Information laws. If you have suffered a medical complication and think negligence may have occurred, you should obtain your notes and seek legal advice.

For further information or assistance contact your nearest TGB office.