The lack of documentation in a medical record does not necessarily mean that nothing was done, although it is open to the courts to make that inference. These cases illustrate the importance of a detailed review of the records and the need for plaintiff’s counsel to understand the expected workflow when routine procedures are being done, as well as the charting policies of an institution.
Inaccurate / incomplete charting
The importance of the completeness and accuracy of medical records was front and centre in Brito et al v. Woolley et al6 [Brito]. This case illustrates the implications of a defendant’s poor charting practice. In Brito the plaintiffs alleged negligence in the birth of the second twin who was deprived of oxygen due to the compression of the umbilical cord. The court dismissed the plaintiffs’ claim due to a failure to prove causation, but in an unusual step awarded costs to the unsuccessful plaintiffs.
Here, the court noted the reckless conduct of all the defendants in the preparation of the medical records, noting that these records are often the only evidence as to the details of a particular event. The court described the records as being “variously incomplete, inaccurate, and inconsistent. …”7. In addition, “the occurrence of material events was omitted completely from some of the medical records; the description of material events in some of the records was wrong; and the sequence and the timing of material events was inconsistent.”8 In describing the standard expected for medical charting the court noted:
[62] The law does not impose a standard of perfection on medical personnel in their preparation and maintenance of medical records. Rather, it is a reasonable standard of care, given the experience of the medical personneland the context in which the medical records were prepared. Occasional inconsistencies, inaccuracies, and/or omissions are tolerated.
The court rejected the defendants’ contention that they should be awarded costs because the plaintiff unnecessarily pursued inconsistent theories as to the reason for the deprivation of oxygen. The only reason the plaintiff had to pursue various theories of causation was that the incompleteness of the medical records left them with no option other than to investigate various interpretations of those records. In addition, the sequence, timing and occurrence of events had to be proven at trial through lengthy viva voce evidence because of the incompleteness of the records.
Invariable / Usual Practice
Not everything done in an interaction with a patient is necessarily charted. Consent discussions are not documented verbatim. Every step taken in a physical assessment may not be charted. The courts recognize these realities, and also recognize that a busy physician will not remember the detail of every patient encounter.9 Courts are often prepared to accept a nurse or physician’s description of their usual practice.10 But the medical records themselves can sometimes defeat that evidence. Cojocaru v. BC Women’s Hospital11 [Cojocaru] illustrates this point.
The plaintiff mother in Cojocaru had a rudimentary command of the English language having only immigrated to Canada four months earlier. The defendant physician conceded that she had no recollection of her discussion with the plaintiff and had to rely on her invariable routine and chart notes to determine what information she had given the plaintiff about the options and comparative risks of a repeat C-section or a trial of vaginal birth after a previous C-section. The court identified a number of examples where the defendant did not follow her other stated invariable routines, specifically with respect to charting crucial information about conversations with the plaintiff. In rejecting the defendant’s “invariable routine” testimony, the court noted the pitfalls of giving too much weight to this kind of evidence:
