Most doctors are likely to receive one complaint or claim during their professional life. It is a ‘life event’, likely to be stressful and filled with uncertainty. None of us like our professionalism questioned or suggestions that we may have done wrong.
Upon receipt of a complaint or a claim, you will of course immediately notify your medical indemnity insurer.
Your insurer is unlikely to say – “That’s terrible doctor. Please come round and have a cup of tea and a biscuit so that we can discuss the matter with you.” Your insurer is more likely to say – “That’s terrible doctor. Can you please send us a copy of your medical records and file in relation to this claim, and then we will have you around for a cup of tea and a biscuit to discuss the matter with you.”
Your insurer will want to know what documentary evidence exists in relation to the claim. In many cases, your medical and other records will be your best defence.
For a patient, an adverse outcome following medical treatment or a procedure will be a ‘life event’ for them. They will apparently remember everything about their treatment, conversations and even what they had for breakfast! The doctor, on the other hand, will have seen many patients that day and that week, and direct recollection of all of the events, all of the circumstances, and all of the details may be difficult. That is why professionals need to keep detailed records.
Doctors and hospitals are very good at keeping records on observations, medications, the course of treatment and clinical observations. Doctors and nurses will have contributed to the medical records. However, it is just as important to be fulsome in describing details of observations, details of the precise procedure undertaken, and any unusual features that appeared on presentation. It is also important to record any significant conversations, particularly warnings to the patient of the risks of the procedure in advance of the procedure (“informed consent”). Also, following an adverse event or outcome, record details of the conversation with the patient to ensure that no admission of liability was made, although you may, of course, extend as a matter of courtesy, an apology to the patient that they have suffered an adverse outcome. Conversations with a patient after an adverse event should of course be done carefully, and potentially with the assistance of hospital management if necessary.
Depending on the nature of the allegation by a patient, simply relying on your memory may not be adequate. The fact that you had detailed contemporaneous notes of what actually occurred, will be a godsend.
In the unlikely event that a matter proceeds to a trial in court, the patient is likely to be a credible witness. The doctor, in the witness box, will be attempting to recollect all of the events from memory – unless there are detailed records also available.
Judges are aware that, no matter how credible a witness a patient appears to be, their memory is also likely to be variable. They cannot possibly remember everything. So, in the event of competing versions of the events – yours and the patient’s – yours will be preferred if there is also written evidence and documentation of the details.
Maintaining detailed notes is not just for your medico-legal defence. It is also a professional obligation, reinforced by the Medical Board of Australia, as part of expected good practice. The MBA Guideline “Good Medical Practice – A Code of Conduct for Doctors in Australia” outlines professional obligations in relation to record keeping.
Good medical records are also essential from the point of view of patient safety and accordingly is also “just good practice”.
Just remember: “Good records = defence”.