In almost every medical malpractice case, this chart becomes the foundation of the factual evidence and a witness’s evidence is expected to harmonize with the chart. It is a legal document that can be admissible in court under section 42 of the Evidence Act6 as an exception to the hearsay rule, provided the notes being admitted are original entries, made contemporaneously by a person who had a duty to make the entry, had personal knowledge of information being documented and had no reason to misrepresent the information. This will usually encapsulate the vast majority of a plaintiff’s medical chart from the visit(s) in question. In the absence of evidence to the contrary, courts have found that contemporaneous chart entries are business records admissible as prima facie proof of the facts stated within them.7
In this case, the medical chart included Dr. Rivera’s handwritten notes including the words “23w5” and “previable.” She also charted the options of inpatient or outpatient bedrest with a note that the patient preferred outpatient, and a repeat ultrasound in two days. She also wrote “consider steroids in two days if further shortened cervix.” The plaintiff argued that “previable” supported Ms. Qu’s recollection of events with a discussion about miscarriage rather than preterm birth. That is, if Dr. Rivera thought the fetus was not viable, there would be no reason to discuss resuscitation or treatment options. Ms. Qu also argued that the reference to steroids (betamethasone) was for future consideration which supported her position that the discussion about steroids did not occur during the visit at issue. Unfortunately for the plaintiff, the medical chart also included the following typed note from Dr. Rivera’s dictation later that afternoon:
Impression and Plan
Li presents with ____ bleeding and short cervix at 23 weeks and 5 days gestation. We discussed the potential for severe preterm delivery given the short cervix, however she has a good prognosis given her previous term delivery. She was offered the option for inpatient observation, but declined. She is recommended to have a repeat transvaginal ultrasound in 2 days’ time for review the cervical length. She is to return to hospital with any recurrence of cramping, pain or bleeding. We discussed the option for betamethasone administration should we perceive a risk of delivery within the next week. Her cervix is short, and she is currently previable. She did not wish to address this type of concern today. She became quite emotional when we discussed this earlier. This can be reassessed in 2 days’ time with repeat ultrasound.
The defendant argued, successfully, that this dictated chart note accorded fully with Dr. Rivera’s version of the discussion and supported her assertion that she offered betamethasone and it was declined. This argument was further supported by a text message sent by Dr. Rivera to Ms. Qu’s regular obstetrician stating “[n]o steroids today, pt couldn’t handle the thought of possible preterm delivery.”
