Uzick and Oncken, Attorneys at Law

Uzick & Oncken P.C.
238 Westcott
Houston, Texas 77007
713-869-6699 (fax)

Illegible Medical Record Notations: Charting Troubled Waters - Kevin Oncken

"I'm a scientist!" you say. "I've been blessed with analytic aptitude; not the artsy-craftsy stuff that lends to nice handwriting!" Well, if you have bought into the right brain syndrome and have used this crutch as justification for authoring illegible entries in medical records, you are placing much more than an onerous burden on your partners and nursing staff relative to interpreting your thoughts and plans for the patient. You are focusing the cross-hairs of the plaintiffs' scope directly on your back. In this day and age of affordable technology there is no reasonable excuse for medical entries that make the Chinese alphabet look like a Dick and Jane reader. Consider the following case and then ask yourself whether you can afford the consequences of the stereotypical physician's handwriting.

The patient was a 33 year old female; in for an annual exam with her gynecologist on May 3rd. Almost incidentally, she reported to the physician that she felt a "thickening" in her right breast. In addition to the typical annual physical evaluation the gynecologist performed a focused physical examination of the breast. However, despite years of experience he could not appreciate any abnormality through palpation. The patient had no outward signs or symptoms that one would associate with breast cancer at the time. Since the patient was an otherwise healthy menstruating female the physician recommended that she return for evaluation within a couple of weeks to allow her to have her period. In the interim he ordered a mammogram to evaluate the breast.

The mammogram was considered by the radiologist to be "normal", revealing only fibrocystic changes in the breast. The gynecologist was in possession of the report when the patient returned on May 26th for the follow up exam. Once again the physician palpated the breast in question and was unable to appreciate any abnormality. The patient reported that she had also performed a self breast exam after having her monthly period and she related her subjective thoughts and conclusions regarding the same to her doctor. Being a prudent and defensive medicine oriented individual, the gynecologist placed her response within quotation marks in the chart. He instructed the patient to continue with monthly SBE and to call with any questions or concerns. After addressing her other gynecological needs he released her to return in one year for her annual.

The patient returned to the clinic a little over a year later and had an unremarkable annual exam. According to the medical records, and the physician's recall of the interaction, no complaint was made by the patient relative to the breast that had been evaluated the previous year. Roughly 3 months later she returned with a palpable lump in the subject breast. Notwithstanding a negative needle biopsy the physician referred her to a general surgeon for evaluation. A few weeks later she was diagnosed with invasive breast cancer with metastases to the bone. She underwent surgery and adjuvant therapy but was deemed terminal by all of her subsequent providers.

As you might have guessed by now, the patient sued the gynecologist for failing to diagnose her breast cancer at the visit some 18 months earlier. To assist her in this effort she retained a very successful lawyer notorious for being extremely hard on physicians in malpractice cases. When the doctor called me to discuss the case he was both sympathetic to the patient and somewhat incredulous that he had been sued in light of the comments that he had placed in quotes at the follow up exam the year prior. According to the physician, the patient was quoted as having stated the following:

"Feels Normal"
"Mass gone"

A telephone call to plaintiff's counsel to bring the above quotes to her attention in an effort to dissuade her from prosecuting the case was met with laughter and a statement that their team interpreted the entry much differently. According to the patient who was now facing a terminal illness and looking for someone to blame she had reported just the opposite to her physician. The plaintiff's attorney told me that the entries actually read:

"Feels Worse"
"Mass same"

The case was hotly contested for nearly two years before it proceeded to trial. By then the patient, although still alive and present in the court room, had less than 90 days to live. Experts from throughout the country were brought in by both sides to address the standard of care as well as causation issues but the case ultimately came down to one thing; interpretation of the follow up note. The gynecologist admitted that his handwriting is horrible and also conceded that if the note read as interpreted by the plaintiff then he violated the standard of care in failing to further investigate the "mass". Plaintiff's experts conceded that the physician met the standard of care if the entry read as interpreted by the gynecologist. Plaintiff's counsel went so far as to present the testimony of a handwriting expert to establish her position. Fortunately, we discredited him through use of other charts authored by the physician wherein the same letters appeared which, in context, made it abundantly clear that the fourth word had to be interpreted as "gone" rather than as "same".

As is absolutely critical to a successful defense I insisted that my client attend the trial every day, all day, until it was concluded. After 4 weeks of trial the jury returned a verdict in favor of our physician. Put aside the emotional toil that spending two years in a pretrial fight and 4 weeks in front of a jury brings to bear and simply consider the enormous economic cost of being out of your practice for 4 weeks. Then ask yourself what you can do to avoid this nightmare if your handwriting is even remotely difficult for others to decipher. Certainly, a handheld tape recorder for dictating progress notes is one means of dealing with this issue.  It is much less expensive than the ordeal described above and lends to clarity for all concerned.

Until next time remember: Writing a wrong may be more difficult than you think!!

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