09.26.2024

By Colleen Buckley

In medical malpractice defense, one of the most common and potentially damaging allegations a client might face is the claim of missing or incomplete documentation. Whether it’s a patient’s medical records, procedure notes, critical test results, or imaging, missing documents can significantly undermine a defense, create doubt, and even lead to adverse legal outcomes.

What Are Missing Document Charges?

Missing document charges occur when critical medical records or documentation is unavailable during litigation, raising questions about whether the records were lost, destroyed, or deliberately withheld. These allegations can severely impact the defense, as the absence of documentation may be interpreted as negligence or a willful attempt to conceal information.

When seeking a missing document charge, where the defense is unable to produce a document, the timing and circumstance surrounding the absence and the explanation proffered is determinative of the instruction and whether the jury may or should attribute a negative inference against the defendant.  The court will either instruct the jury that the plaintiff claims the defense failed to preserve records and that they may conclude the missing evidence would have supported the plaintiff, or that the court has determined that the defendant failed to preserve records and the jury should presume that the evidence would work against the defense.  See, NY PJI 1:77.1; 1:77.2.

This can be particularly devastating because:

• Documentation forms the backbone of medical care. Everything from diagnosis to treatment decisions is based on medical records. Missing documents will be used by plaintiff’s counsel to support accusations of inadequate care.
• Jurors may perceive missing documents as suspicious, even if the absence is accidental; therefore damaging the defense’s credibility, despite a compelling argument to explain the absence, 
• It shifts the burden of proof to the defense to establish that the procedures for preserving records were appropriate and adhered to, or in the most extreme cases, that the absence is not the result of willful destruction of evidence. 

Tips for Avoiding Missing Document Charges

1. Establish a Comprehensive Document Retention Policy:

• Make sure your organization follows a strict document retention policy that complies with federal, state, and industry-specific requirements.
• Regularly review and update the policy to account for new regulations and technologies.

2. Train Medical Staff on Proper Documentation Practices:

• Educate healthcare professionals about the importance of accurate, timely documentation.

• Stress the legal implications of incomplete or missing records, emphasizing the need for detailed and accurate patient medical chart entries.

3. Leverage Electronic Medical Records (EMR) Effectively:

• Transition to or enhance your use of EMR systems, which can help streamline documentation, minimize errors, and reduce the risk of lost records.

• Make sure EMR systems are regularly backed up and that data is stored in secure, accessible formats.  Backing up data can be especially important when rolling out new hardware to ensure that information is not lost when equipment is upgraded or taken out of service. 

4. Implement Routine Audits:

• Conduct regular audits of medical records to ensure all necessary documentation is completed and properly stored.

• Catch potential gaps before they escalate into more significant issues, and ensure that all records are readily available for litigation if needed.
• Audits should also be considered when practices merge and/or when a practice becomes part of a larger health system.  This will ensure seamless and accurate integration of EMRs.  

5. Communicate with Legal Counsel Early in the Process:

• If an incident may result in litigation, work closely with legal counsel to ensure all relevant documents are preserved and ready for discovery.

• Establish a preservation protocol for cases likely to enter litigation, avoiding claims of spoliation or destruction of evidence.

6. Invest in Document Management Technology:

• Implement a reliable document management system that tracks and stores critical medical and legal documents. This ensures that no records are misplaced or inadvertently destroyed.

• Use automated systems that flag when documents are incomplete or missing, prompting immediate follow-up.

7. Respond Quickly to Requests for Information:

• When facing litigation, respond to document requests promptly. Delayed or incomplete responses can exacerbate missing document claims.
• Have a dedicated team to manage document production in high-stakes cases, ensuring that all records are accounted for and accurately presented.

The Impact on Clients

For hospitals, doctors, and insurance companies, allegations of missing documents can have significant repercussions. Missing documents can significantly heighten liability risks, as the jury may presume negligence or intentional misconduct in their absence.  A negative inference can increase exposure, decrease chance of success at trial and lead to higher than anticipated settlement amounts.  

Financially, missing document claims can escalate litigation costs and result in higher settlements or verdicts. Juries may award more considerable damages based on the perceived misconduct or negligence suggested by the absence of critical records. More time and resources are also required to address these issues, compounding the financial strain on the defense.

A healthcare provider’s reputation is built on trust and credibility, which accusations of missing documentation can severely damage. These claims can lead to a loss of patient confidence, strained relationships with insurance companies, and a diminished public image, negatively impacting the provider’s ability to operate effectively. Lastly, missing documents can attract regulatory scrutiny. Hospitals and clinics may face audits, fines, or increased oversight from regulatory agencies.

Thorough and precise documentation, proper document management and record retention is essential in mitigating malpractice risks for medical professionals, hospitals, and insurance companies. By implementing comprehensive document retention strategies, effectively relying on technology, and staying proactive with legal counsel, healthcare providers can significantly reduce the likelihood of a missing document charge and the detrimental effects of a negative inference at trial.  

If you have questions about missing documents in malpractice cases or about other facets of medical malpractice law, please contact Colleen Buckley.