Absent surgeon testifies that hospital records are missing, incorrect

I recently took the deposition of a defendant-surgeon in a medical malpractice case that is pending in the Houston area.

What is a deposition?

A deposition is a pre-trial discovery procedure that typically takes place at an attorney’s office. A certified court reporter is present, who places the witness under oath, and then attorneys question the witness. Attorneys for both sides are present.

As a Houston, Texas medical malpractice attorney, I find depositions to be an important part of the pretrial preparation of the case. Depositions provide the singular opportunity to question a defendant doctor or hospital employee face-to-face before trial.

When preparing for a deposition of a defendant in a medical malpractice lawsuit, I have two goals in mind. First, I want to learn what the witness knows. This requires careful preparation of questions. Second, I want to nail-down the testimony of the witness in such a way that the answers are clear and unambiguous. The reason for this is that, at the time of trial, attorneys can read the testimony transcribed by the court reporter to the jury, just like the witness was live on the witness stand and testifying.

Surgeon has creative memories during deposition

Even after many years of deposing defendant physicians, some witnesses provide surprising testimony. This is exactly what happened during the deposition of the defendant-surgeon that I mentioned earlier.

As part of my preparation for this surgeon’s deposition, I carefully reviewed the medical records and noticed that the surgeon made no notes of seeing the patient for two critical days. The patient was hospitalized after the surgery and, according to the hospital records, came to see her the next two days, but then skipped the following two days.

During his deposition, the defendant-surgeon testified that he was 100% certain that he had seen my client on both days , but missing from the record, that he had written a note on each day. He testified that he could not find those notes in the hospital medical records, but that he had not looked further. Multiple witnesses on both sides testified under oath that this particular surgeon was generally hard to reach.

As you might have guessed by the fact that there is a medical malpractice lawsuit pending, those two days are important to the lack of care that my client received. Our medical expert surgeon reviewed the medical records and concluded that the surgeon should have been taking the patient back to the operating room because of a bowel perforation, rather than being absent as the medical records state.

The defendant-surgeon had other strange things to say during his deposition. On a few instances, he disputed what he documented in the medical records, saying things like, “I know what it says, but that is not what I meant.”

In my experience, juries see through this type of unlikely testimony. We will certainly point out all of the inconsistencies when we take this medical malpractice lawsuit to trial.

Danger to patient safety

Medical records have an important role in the continuity of care, which means that, when they are incomplete or inaccurate, there is danger to patient safety. The fact is that no surgeon, physician, or nurse is ever on duty 24/7 during a hospitalization. The medical records are an important way for information to be communicated among providers going on and off shifts during the patient’s hospital admission.

Realizing that there is a risk of mistakes in the medical records, and that some doctors do not show up to see their patients in a hospital as often as they should, I recommend that patients and families make their own healthcare journal.

While most patients and family members will be laypeople without medical or nursing training, it is easy enough to write down daily observations about how the patient is doing. I also recommend writing down what physicians come to see the patient, and what they say and do. The same is true for significant visits by the nursing staff and therapists. Write down any questions that are asked and answers that are provided.

In my experience from speaking with medical malpractice clients over the years, many people have experienced what the old saying describes as the right hand not knowing what the left hand is doing. The healthcare journal can be a good resource in terms of managing communications with different healthcare providers coming into the room and making sure that they have the accurate information that they need to make assessments and treatment decisions.

We are here to help

If you or a loved one has been seriously injured by medical, hospital, surgeon, or anesthesiologist malpractice or mistakes, then you should hire an experience medical malpractice lawyer immediately.

Painter Law Firm is here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.


Robert Painter is a 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 against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

Robert Painter
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Robert Painter

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm Medical Malpractice Attorneys 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 for a free consultation and strategy session by calling 281-580-8800 or emailing him right now.