The Electronic Patient Record And Clinical Negligence Claims

Medical records are obviously a crucial part of a patient’s health journey, documenting important information at key points in time during that journey. Such records are a fundamental and necessary resource to ensure that future treating health professionals are aware of what was found and decided in the past, be it information from the patient’s history, examination and investigations and/or what their diagnosis and management was.

Clinical necessity

Good medical notes are crucial to ensuring comprehensive patient care, facilitating proper communication between healthcare professionals and aiding in healthcare administration. It is, therefore, critical from a clinical perspective that healthcare professionals make good notes which are accurate, clear, comprehensive and comprehendible, but also concise and to the point: such notes are as much an art as a science. It is important that notes are structured in a logical format; that findings that are documented are relevant, with both relevant positives and relevant negatives being recorded; that findings included are both subjective (patient-reported) and objective (healthcare professional-elicited or from laboratory or other test results); that notes do not contain mistakes; are properly signed, timed and dated; and do not contain slang, expletives, personal comments or abbreviations which can be misinterpreted: it has long been the case that various medical acronyms, abbreviations and hieroglyphs are used to represent facets of a patient’s medical history and, whilst these are time-savers, they can be difficult to decipher for those unfamiliar with medical jargon; hieroglyphs are also not always easily electronically reproducible.

Legal importance

Good medical notes are not just crucial to a patient’s clinical healthcare journey, though: they are legally very important, as they are also almost always a critical part of a clinical negligence claim. This is because they record what has happened to the patient at what may end up being crucial points in time in the chronology of events, which may be key in either establishing a claim or in defeating one. Indeed, medical defence organisations usually extol on clinicians the virtue and importance of making good notes: a poor, indecipherable or absent record may be the difference between successfully defending a claim or being found liable.

As such, it cannot really be over-emphasised how important good medical notes are, from both a clinical and a risk perspective.

Paper notes

Many moons ago when I trained as a medical doctor it was with paper records, which is all we had at the time: there were minimal computer records (this was before the first iteration of Microsoft Word). Every patient had their paper medical file kept in a trolley on the ward at the nurses’ station, into which all clinical notes were written and investigation results and other notes were added/stuck and stored; observation and other charts were kept at the end of the patient’s bed; and nursing and other similar notes (therapy notes, etc.) were usually kept in a separate trolley also at the nurses’ station and added to the patient’s file on discharge. The records were generally relatively neatly divided into key categories (sometimes colour-coded!), such as clinical notes, investigation results, observation charts, prescription charts, surgical notes, nursing notes and correspondence. There was a certain logic to the layout. They were generally in broad chronological order, so it was usually fairly easy to follow the patient’s journey through the hospital and the community. It was also reasonably easy to copy and reproduce the patient’s file. Although there were some differences, generally hospitals tended to have broadly the same layout of notes, with usually only variations on a theme.

What is the Electronic Patient Record?

Nowadays, though, paper records are being reasonably quickly superseded by electronic records (E-records or E-notes), known as the Electronic Patient Record (EPR) or the Electronic Health Record (EHR). I gather from NHS England that by February 2024 over 90% of NHS Trusts had adopted E-records and an EPR system, although I also understand that apparently at that time about 75% of Trusts were also still reliant to some extent on paper notes (so presumably those Trusts were operating a mixed system). These electronic systems allow clinicians to generate a clinical note on a computer, where it is stored on a local network or, increasingly, in the cloud. As with all significant technological advances, there are both advantages and disadvantages. E-records not only save on the use of paper and physical storage space but also facilitate access to a patient’s records from almost any location and across different care provider institutions. However, there are some major disadvantages, too, including issues concerning cybersecurity, miscommunication between healthcare providers and the increasing administrative burden such records can create. Nevertheless, research has relatively consistently shown that clinically E-records improve communication, productivity and patient outcomes, so there are clinical benefits.

Records in clinical negligence

In a clinical negligence claim, one of the first steps taken to investigate the potential claim is to obtain a full set of the claimant patient’s medical records, ‘sort’ them into their respective categories (broadly those as identified above), paginate and then index them, so that everyone involved in the case has the same set of medical records from which to work, ensuring consistency and continuity of evidence. In addition, it is necessary early on to consider the records’ substantive content in relation to the merits of the claim. The paper records system was imperfect in this regard and often threw up significant problems for legal claims, let alone in a clinical context. Doctors’ handwriting is infamously poor and often indecipherable. There could be key notes missing, as paper notes can easily be misfiled, lost, damaged or destroyed. Sometimes whole files would go missing, not just the occasional page. Paper files would also have to be stored somewhere, usually taking up lots of space in a large basement or off-site facility, sometimes then becoming lost amongst the mass of other patient records, never again to see the light of day. A&E or ITU notes would often be stored separately, perhaps in a local cupboard, never actually making it into the patient’s main set of notes. Microfiched, scanned or digitised paper records are often of terrible quality, too. Notwithstanding all of the above, and call me antediluvian, but I rather like paper records, although perhaps I am just being overly nostalgic and/or showing my age.

Have E-records improved matters?

In my view, at least from a clinical negligence perspective, the answer is a resounding ‘no’. In fact, in my experience they have made matters considerably worse. Poorly documented notes remain a frequent and frustrating finding, perhaps in part due to clinicians’ lack of understanding of the importance or relevance of good notes, time constraints (or at times perhaps just laziness) and long-standing bad habits which need to be broken. The order in which E-records are generated is generally a far bigger mess than was the case with paper ones. Patient ‘events’ are usually not in chronological order, so it is much harder with E-records to try to recreate the patient’s file that follows the patient’s chronology. Frequently, information from very different ‘events’ on very different dates is set out on the same page, even though those events may have taken place days or even weeks apart, making no sense; there is just no logic to it. Overall, the order the records are in when we receive them now is usually far worse than when we had paper records.

Duplication is another problem. There is far more duplication now because ‘new’ clinical entries are often added below existing clinical entries but with all the entries being generated together every time a new entry is added, forming entry upon entry of repeated notes rather than each entry being an isolated, once-only, free-standing one. Not only are there repeated entries of the same note but it is not always clear when the additional entry was added. Sometimes from E-records it is simply impossible to work out who made the entry, when they made it, what precisely was happening at the time, etc. (was it a consultant ward round, was it a junior doctor’s review, etc.?). From the E-notes I have seen in recent years, I also wonder that E-records make some clinicians lazier in their notetaking. Perhaps this is because it is harder to write hieroglyphs on a computer, so it may be easier to write nothing at all. Is it quicker to type or handwrite? It is probably horses for courses to some extent. But key information seems to be left out in its entirety just as much as, if not more than, with paper notes. I also see plenty of electronic ‘proformas’ or ‘templates’ in E-notes, presumably designed to make completion easier, but ironically they are frequently not completed at all. So, overall, I think things have worsened rather than improved with the advent of the EPR.

Conclusion

All of these problems inevitably result in more time, and cost, being incurred in the early stages of a clinical negligence claim, when the records require sorting into a manageable and organised bundle. Additionally, the above problems make analysing and understanding the records much harder, again incurring far greater time and cost than used to be the case with purely paper records. Whilst records have always tended to be substantial in complex cases, even when they were solely paper-based, there is no doubt in my mind that E-records have significantly reduced the quality and increased the quantity of the records that we receive and have added substantially to investigation costs. In an era where the Courts are squeezing claimant costs, the substantial additional time and cost burden E-records is now placing on claimants at the early stages of a case is most unfortunate. I am not convinced that the Courts have yet fully grasped the importance of this issue and the significant impact it has on costs, and ultimately on costs budgeting. Nevertheless, it will not be long before all Trusts have EPRs, so they are here to stay: as such, the issue of E-records causing lengthier and more expensive investigations, with larger, messier and less comprehendible medical records bundles will, ultimately, need to be addressed at some point.