4. Medical
Malpractice and
Medical Records:
Dr. Ayub Abdulkadir (Dr. Alto)
Medical Ethics

Malpractice:
• Definition:
• Malpractice is a preventable error in the care of
patient resulting in harm to the patient.
• Or Professional misconduct or demonstration of an
unreasonable lack of skill with the result of injury,
loss, or damage to the patient.
• Malpractice acts consist of:
1. Professional misconduct.
2. Improper discharge of professional duties.
3. Failure to meet professional standards of care that
result in harm to another person.

• Negligence: unintentional action that occurs when
a person performs or fails to perform an action that
a reasonable person would or would not have
committed in a similar situation.
• Physicians and healthcare workers who fail to act
reasonably in the same circumstances are
negligent.
•Medication errors are one of the leading
types of medical errors.

• For example, a surgeon is consulted to place a
central line. He is very rude arrogant and speaks
harshly to the patient. The patient signs consent
after being informed of the complications and
alternatives in management. A pneumothorax
occurs and the patients is infuriated that this “high
handed baster” hurt him. He files suit against the
surgeon for malpractice. What will be the most
likely outcome of the suit?

• For example, a patient with diabetes has osteomyelitis
on an X ray of his foot. The physician does not perform
a bone biopsy and gives the patient oral cefadroxyl for
six weeks. After therapy is over, the osteomyelitis has
completely resolved.
• The patient sees some literature on the Internet several
months later conclusively showing that a bone biopsy is
an indispensable part of osteomyelitis care to
determine an organism and its sensitivities. In addition,
he sees that intravenous therapy is the standard of
care. He files suit against the physician. What will be
the most likely outcome?

The Tort of Negligence:
• Malfeasance: performing a wrong or illegal act
• Misfeasance: improperly performing an otherwise
proper or lawful act
• Nonfeasance: failure to perform a necessary action

Four Ds of Negligence:
1. Duty: responsibility established by
physician–patient relationship
2. Dereliction: neglect of duty
3. Direct or proximate cause: the last
negligent act that contributed to a patient’s
injury, without which the injury would not
have resulted.
4. Damages: injuries caused by the
defendant.

Preponderance of Evidence:
• One side must demonstrate a greater weight of
evidence than the other side.
• The plaintiff (patient) must prove that it is more likely
than not that the defendant (physician), in this case the
physician, has caused the injury.
• If the defendant demonstrates more convincing
evidence than does the plaintiff, then the case will be
found for the defendant.
• If both sides demonstrate equally convincing evidence,
then the case will usually be found in favor of the
defendant.

Damage:
• Damages refer to any injuries caused by the
defendant. Patients seek recovery, or
compensation, for a variety of damages:
1. Permanent physical disability.
2. Permanent mental disability.
3. Loss of enjoyment of life.
4. Personal injuries.
5. Past and future loss of earnings.
6. Medical and hospital expenses.
7. Pain and suffering.

Types of damage:
A. Compensatory damages: court-awarded
payment to make up for loss of income or
emotional pain and suffering.
B. Punitive or exemplary damages: monetary
award by court to person harmed in malicious
and willful way; meant to punish offender.
C. Nominal damages: slight or token payment
awarded by court.

Fraud:
• Fraud: the deliberate misrepresentation or
concealment of facts from another person for
unlawful or unfair gain.
• Fraud in healthcare includes a wide range of illegal
actions.
• Fraud in the healthcare setting is one of the fastest
growing criminal areas.

Defense to Malpractice
Suits:
• Affirmative defenses:
• Denial = Plaintiff must prove defendant did
wrongful or negligent act.
• Assumption of risk = Prevents plaintiff from
recovering damages if plaintiff voluntarily accepts a
risk associated with the activity.
• Contributory negligence = Conduct on part of
plaintiff that contributes to cause of injuries.
• Comparative negligence = Plaintiff’s own
negligence helped cause injury.

Malpractice Prevention:
1. General guidelines
2. Safety
3. Communication
4. Documentation

Medical Records:
• Medical records: is all of the written
documentation relating to a patient.
• The includes:
1. Past history information.
2. Current diagnosis and treatment.
3. Correspondence relating to the patient.
• Billing information is often maintained in a separate
accounting record.

• It is important to remember that the medical
record is a legal document.
•Purpose of the Medical Record:
1. Record of patient from birth to death.
2. Document for continual management of patient’s
health care.
3. Provides data and statistics.
4. Tracks ongoing patterns of patient’s health.

A Medical Records Filing System

Contents of the Medical
Record:
• Personal information about patient
• Clinical data or information
1. Records of medical examinations
2. X-rays
3. Lab reports
4. Consent forms
5. Referrals: PT/OT
6. Prescriptions and refills

Example of SOAP Charting

Two Common Forms of
Charting:
• POMR: Problem-Oriented Medical Record
includes chronological record of each visit
• SOAP: subjective, objective, assessment,
plan
• Subjective statements of patient
• Objective data such as lab reports, vital signs
• Assessment or diagnosis
• Plan of treatment.

Corrections and
Alterations:
•Draw one line through error
•Write correction above error
•Date and initial change
•Do not erase or use correction fluid
•Falsification of medical record is
grounds for criminal indictment.

Example of Corrected Chart Notation

Timeliness of Documentation:
• Medical records must be accurate and timely
• All entries must be made as care occurs or as soon
as possible afterward
• Should be completed by physician within 30 days
following patient's discharge from hospital.

Confidentiality:
• Medical records should not be released to a third
party without patient’s written consent
• Only specific records requested should be copied
and sent
• Taking photos or other visual images of patient
without consent is invasion of patient’s privacy.

Ownership :
• Physicians or owners of health care facility own the
medical record
• Patients have legal right of “privileged
communication” and access to records.
• Patients must authorize release of records in
writing
• Doctrine of professional discretion: physician may
determine, based on his or her best judgment, if
patient with mental or emotional problems should
view medical record.

Release of Information:
• Never send entire medical chart unless it is
requested
• Do not send original
• Record may not be released to patient without
physician’s permission
• Patient must sign release form for information to
be sent to insurance company.

Retention and Storage
of Medical Records:
• Each country varies on length of time records must
be kept
• Legally, records must be stored for a minimum of
ten years from time of last entry
• Minor’s records must be kept until patient reaches
age of maturity.

Storage:
• Current records usually kept within physician's
office
• May rent storage space
• May be placed on microfilm
• Kept in fire-proof, locked area.

Medical Records Storage Unit

Computerized Medical
Records:
• Data on patient records can be created, modified,
authenticated, stored, and retrieved by computer
• Special safety measures should be taken to
establish personal identification and user
verification codes for access to records
• Should be accessed on need-to-know basis.

Use of Medical Record in
Court:
• Improper Disclosure: health care providers and
institutions may face civil and criminal liability for
releasing medical records without proper patient
authorization
• Subpoena Duces Tecum: written order requiring
person to appear in court, give testimony, and bring
information described in subpoena.