How to Keep the Chart From Becoming the Plaintiff’s Best Witness

The electronic health record (EHR) serves many essential functions in family medicine. It documents care to supplement memory, facilitates communication and collaboration, helps clinicians organize their thinking, and supports quality improvement, business, and regulatory initiatives.

The EHR also plays a key role in medical malpractice litigation. In malpractice cases, jurors evaluate whether a physician met the standard of care primarily through the medical record and the testimony of expert witnesses.¹ The chart is the authoritative account of the care you provided. Jurors tend to place far greater trust in contemporaneous documentation than in testimony based on your recollection, even when that testimony is honest and well intentioned.

Plaintiffs’ attorneys sometimes use data or metadata from the EHR to try to paint the physician in a poor light. Once jurors begin to doubt a physician’s honesty, carefulness, or professionalism, they may view any medical decision, no matter how defensible, through a negative lens. This can be hard to counter because character evidence is generally not admissible in civil cases, such as medical malpractice, which hinge on a person’s actions in one specific instance, rather than a pattern of behavior.²

With that in mind, physicians should be aware that certain common documentation practices, if not used carefully, can unintentionally undermine their credibility, shifting a case away from medical judgment and toward perceived character flaws.

Metadata is hidden data embedded within the EHR that can be surfaced in a malpractice case. It typically includes who entered information (based on the user’s login information), when it was entered, whether and when it was modified, and when the chart was accessed (even if it wasn’t modified).

Case example: pre-charting and metadata. A middle-aged, otherwise healthy patient presented to his primary care physician with atypical chest pain. In the medical record, the physician documented a focused history and physical examination, a normal electrocardiogram, and an assessment of “atypical chest pain.” The physician documented his medical decision making, referred the patient for treadmill stress testing, and provided appropriate return precautions.

Before completing the stress test, the patient suffered a myocardial infarction. He survived but was left with a reduced ejection fraction and later filed suit.

The case initially appeared defensible. The defense attorney retained an expert witness who supported the care documented in the chart and viewed the outcome as an unfortunate event that occurred despite reasonable medical judgment. However, the plaintiff’s attorney subpoenaed the EHR metadata, which revealed that the physician had entered the entire visit note and signed it while the patient was still at the nursing intake station undergoing vital sign assessment.