[97] …Most practitioners practice properly, most of the time. If evidence of “invariable routine” is given too much weight, no medical practitioner would ever be found to have been negligent. When a medical specialist makes no notes, or very scanty notes, and his\her evidence conflicts with other independent evidence of what occurred, the court must be very cautious indeed before accepting the “invariable routine” evidence. …
In addition to identifying examples in which the defendant had not followed her invariable practice, the court noted factors that weighed strongly in favour of the plaintiff’s evidence that she had not been advised of the risks of a trial of vaginal birth after a previous C-section, including the plaintiff’s beliefs, her experience from her first pregnancy as well as cultural influences.12 Ultimately the court preferred the plaintiff’s evidence and found that had she been advised of the risks she would not have considered a trial of labour, and ultimately the infant plaintiff’s injuries would have been avoided.
In order to minimize the weight the court ascribes to “invariable routine” evidence it is necessary to comb through the medical records, often beyond the facts specific to the negligence, to identify potential deviations from an invariable routine. Carefully crafted questions at an examination for discovery can lead the defendant to identify a number of “invariable routines” for which exceptions may be found in the medical records. This could decrease the likelihood of the court finding that a critical “invariable routine” was followed.
Changes to medical records
If problems arise during labour and delivery and there are signs of fetal distress, the medical team may find themselves working furiously against the clock, administering resuscitative measures, reviewing and assessing the fetal heart monitoring strip and calling in additional personnel to help. The contemporaneous recording of the chart notes may fall by the wayside. What then?
From time to time it is necessary to make additions and changes to the medical records. The College of Physicians and Surgeons’ “Practice Guideline – Medical Records Documentation” [CPSBC Practice Guideline] acknowledges that it can be appropriate for corrections to be made to medical records, provided that the physician clearly identifies what alterations were made and when.13
When proper procedures are not followed and changes are not marked clearly as “corrections” or “late entries” the possibility of self-serving motives can arise.
In Paxton v. Ramji14 the infant plaintiff was exposed to the known teratogenic drug Accutane in utero. The defendant physician prescribed the medication to the plaintiff mother on the understanding that her husband had a vasectomy 4 ½ years earlier. Nonetheless, she became pregnant while on Accutane, and the infant plaintiff was born with a number of birth defects.
The defendant physician kept typewritten clinical notes but made handwritten entries on these typewritten notes on days that were critical to the analysis of the Accutane issue. The plaintiff claimed punitive damages because of these handwritten changes. Although the court found that the chart alterations were made after the alleged breach of prescribing Accutane, and for the purpose of masking the breach, the court did not order punitive damages. Acknowledging that the alteration of notes heightens, complicates and prolongs the dispute, the court suggested this concern could be adequately addressed as a costs issue. The court labelled the act of altering a medical record as “reprehensible” but found that it did not reek of “enormity or gross impropriety” of the type recognized in awards of punitive damages.15
Steinebach v. Fraser Health Authority16, [Steinebach] provides another example of changes made to a medical record after the bad outcome was recognized, and without being properly identified as late entries. Here the plaintiff called a handwriting expert who testified that certain words in the chart notes that were dated before the birth of the infant were added in different ink after the birth of the infant, at which time it was known that the health of the newborn was compromised. In addition, some of the information that had been entered late was not even available at the time of the initial note.17
