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How to pursue a Texas medical malpractice case when medical records are silent or missing

Getting past the initial expert stage opens up discovery tools necessary to prove the case

Early in my legal career, the main challenge in reviewing medical records was deciphering handwriting. As a group, doctors are legendary for having terrible penmanship.

With the advent of electronic medical records, new issues emerged in medical record analysis. Electronic medical records are easy to read because they’re typewritten, but perhaps 75% of a typical patient chart is regurgitated or repeated text from prior injuries.

Repeated make it difficult to determine what a doctor or provider actually reviewed, or what was auto-populated by the computer system. Audit trails help shed light on these issues.

Recently, though, yet another medical records problem come up in some of our pending cases—completely absent documentation.

In one case, the patient walked into a freestanding imaging facility for a CT scan and died an hour later from contrast anaphylaxis. Imaging center staff called 911, an emergency medical services (EMS) crew showed up at the facility to resuscitate the patient, and transported him away to a nearby hospital where he died shortly arrival.

It would be reasonable to expect that this adverse event would be documented in detail in the imaging facilities medical record. Instead, there’s not a single reference to it. Judging from the records, it would seem that the man had a CT scan and went home to continue to live a normal life. There is no indication of an unexpected outcome or patient death.

In another case, an infant patient went into respiratory arrest after being extubated following a surgical procedure, but there’s no documentation of the code or his clinical status in the hour or so prior to the event.

These issues make it difficult for Texas medical malpractice plaintiffs to comply with tort reform requirements of producing one or more expert reports early in the litigation, before there’s an opportunity for a meaningful discovery.

Texas Civil Practice & Remedies Code Section 74.351 requires Texas medical malpractice plaintiffs to serve on each defendant one or more medical expert reports within 120 days of the defendant filing an original answer lawsuit. These reports are technical and specific, meaning that they must separately define the standard of care, who deviated from the standard of care and how, and link these mistakes to harm the patient (proximate cause).

When faced with the medical record vacuum, this is a daunting task. For an experienced Texas medical malpractice lawyer, though, it’s not an impossible one.

You see, healthcare defendants who failed to make any medical record documentation shouldn’t be allowed to use it as a sword and shield. In other words, it’s unfair and not in the interest of justice for courts to sustain defense objections to the sufficiency of the plaintiff’s expert report in these circumstances.

Fortunately, there are some good appellate court opinions that recognize the difficulty that a lack of medical record documentation imposes. For example, the Texas Supreme Court’s opinion in the case styled In re Jorden, 249 S.W.3d 416 (Tex. 2008), observed that trial and appellate courts should take into account the “state of the records . . . In deciding whether report represents a good faith effort to comply with the statute.”

If you’ve been seriously injured because of poor hospital or medical care in Texas, then it’s important to consult with a top-rated experienced Texas medical malpractice attorney who’s familiar with the ins and outs of this complex area of the law.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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