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Sidebar - The Missing Link | How Gaps in Medical Records Shape Litigation Outcomes · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

• 0:03
  SPEAKER_00: This is Statute 10 Steps.
• 0:06
  SPEAKER_00: I'm Tracy Libertori.
• 0:08
  SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
• 0:14
  SPEAKER_00: You're a clinician who wants this work or an attorney who needs an expert who can hold up.
• 0:19
  SPEAKER_00: You're in the right place.
• 0:20
  SPEAKER_00: Let's get into it.
• 0:25
  SPEAKER_00: Let me start with a chart that still makes me shake my head.
• 0:31
  SPEAKER_00: A patient on blood thinners in a skilled nursing facility.
• 0:35
  SPEAKER_00: Medications reconciled.
• 0:37
  SPEAKER_00: Fall risk noted.
• 0:38
  SPEAKER_00: Family updated.
• 0:41
  SPEAKER_00: But on the day everything changed, there is no blood pressure recorded.
• 0:46
  SPEAKER_00: Not one number.
• 0:49
  SPEAKER_00: The patient was dizzy.
• 0:51
  SPEAKER_00: Staff didn't check.
• 0:52
  SPEAKER_00: And by the time someone did, they were already in crisis.
• 0:56
  SPEAKER_00: The expert didn't have to prove what the blood pressure was.
• 1:00
  SPEAKER_00: They only had to point at the empty space and say, if we don't know, then we can't rule out what should have been done.
• 1:07
  SPEAKER_00: That empty space settled the case.
• 1:09
  SPEAKER_00: Not the drug, not the diagnosis, not the surgeon, a missed vital sign.
• 1:16
  SPEAKER_00: Now, when I talk about a gap in the record, I am not talking about a chart that's a little messy.
• 1:23
  SPEAKER_00: I mean a space where a piece of the clinical story should be and it isn't.
• 1:28
  SPEAKER_00: It can be a missing progress note, it can be a late entry added three weeks later, time stamped as if it happened on time.
• 1:35
  SPEAKER_00: It can be an altered record where the original text is still faint underneath.
• 1:40
  SPEAKER_00: Even a single unsigned order can be a gap.
• 1:44
  SPEAKER_00: Because it leaves everyone guessing about who made the decision and when.
• 1:48
  SPEAKER_00: In real workflows, these gaps happen in a hundred ways.
• 1:53
  SPEAKER_00: A patient asks a question over the phone and the nurse addresses it, but nobody writes down that conversation.
• 1:58
  SPEAKER_00: A resident evaluates a patient and then gets pulled into another emergency.
• 2:02
  SPEAKER_00: And then the attending signs off without ever seeing them.
• 2:05
  SPEAKER_00: A doctor pulls a verbal order and assumes someone else will document it.
• 2:11
  SPEAKER_00: None of that is malicious, but in litigation, a chart with these holes becomes a puzzle the jury has to solve.
• 2:19
  SPEAKER_00: And when a jury starts solving puzzles, they stop trusting the record.
• 2:23
  SPEAKER_00: I want to pause here for a moment.
• 2:26
  SPEAKER_00: Because I know there's a clinician listening who is already thinking, easy for you to say, you're not the one with six patients, a full inbox, and a charting system that logs you out every 10 minutes.
• 2:38
  SPEAKER_00: And you're right, I'm not anymore, but I was once.
• 2:43
  SPEAKER_00: I was a PA when EMRs were just being implemented, just to date myself a little bit.
• 2:49
  SPEAKER_00: But the chart is never going to be perfect.
• 2:52
  SPEAKER_00: It was not designed to capture every human moment in a hospital.
• 2:56
  SPEAKER_00: But here's the thing: it doesn't need to be perfect, it needs to be defensible.
• 3:02
  SPEAKER_00: And the systems that we work in make defensible charting even harder than it should be.
• 3:08
  SPEAKER_00: Electronic records are full of copy forward pitfalls.
• 3:12
  SPEAKER_00: Believe me, I know I had to use them at one point.
• 3:16
  SPEAKER_00: One click and yesterday's exam becomes today's.
• 3:19
  SPEAKER_00: Templates auto-populate findings that you didn't even actually check.
• 3:24
  SPEAKER_00: Alerts fire so often that people stop reading them, the pop-up boxes constantly.
• 3:29
  SPEAKER_00: And when a template says reviewed and reconciled, and that wasn't really what happened, the chart becomes a liability in a way a blank space never would.
• 3:39
  SPEAKER_00: When you don't go back and edit yesterday's notes that you just copied forward from yesterday, but yet yesterday was from the day before or the week before or the month before.
• 3:48
  SPEAKER_00: And you know, we're talking about a bug bite that happened six months ago that's been resolved, but it's still showing up under the exam, that's a problem.
• 3:58
  SPEAKER_00: So, yes, time pressure is real.
• 4:00
  SPEAKER_00: The myth of the perfect chart is dangerous.
• 4:04
  SPEAKER_00: But the bigger danger is a chart that looks complete when it isn't.
• 4:08
  SPEAKER_00: Here's where it gets interesting.
• 4:10
  SPEAKER_00: In a courtroom, a gap isn't just an absence, it's an invitation.
• 4:16
  SPEAKER_00: Counsel stands up and asks a doctor, Where is your note?
• 4:20
  SPEAKER_00: The doctor says, Well, I remember talking to the family.
• 4:24
  SPEAKER_00: The attorney says, Well, show me.
• 4:26
  SPEAKER_00: And the silence that follows is louder than any testimony.
• 4:30
  SPEAKER_00: Jurors are told they can use inference.
• 4:33
  SPEAKER_00: They're allowed to say, if the record doesn't show it, then maybe it didn't happen.
• 4:39
  SPEAKER_00: That is the vacuum a gap creates.
• 4:41
  SPEAKER_00: Counsel doesn't have to prove what the missing note would have said, they just have to convince the jury that the absence itself is evidence.
• 4:51
  SPEAKER_00: It's devastating because it shifts the story away from what actually happened and towards what the chart fails to show.
• 4:58
  SPEAKER_00: You can have a clinician who did everything right at the bedside and still lose the case because the record doesn't prove it.
• 5:05
  SPEAKER_00: But let's be fair.
• 5:06
  SPEAKER_00: There's two sides to every story.
• 5:08
  SPEAKER_00: A defense attorney worth their salt doesn't just hope that the jury ignores a gap.
• 5:13
  SPEAKER_00: They build a bridge across it.
• 5:15
  SPEAKER_00: There are legitimate reasons a note is missing.
• 5:18
  SPEAKER_00: A nurse may have been pulled into an emergency room.
• 5:20
  SPEAKER_00: A physician may have documented late because the system was down.
• 5:24
  SPEAKER_00: A phone call may have happened, but the policy didn't require it to be logged.
• 5:28
  SPEAKER_00: A good defense will show the jury those policies, put the provider on the stand, and walk through the timelines with the witness testimony.
• 5:36
  SPEAKER_00: And they'll say, not every action leaves a footprint, and the standard of care doesn't demand one.
• 5:42
  SPEAKER_00: And sometimes that works.
• 5:44
  SPEAKER_00: But here's the critical piece.
• 5:46
  SPEAKER_00: It only works when the explanation is true and when the jury believes the person giving it.
• 5:52
  SPEAKER_00: The moment an attorney has to explain away a gap by saying the doctor was too busy, opposing counsel already has won a piece of the cake.
• 5:59
  SPEAKER_00: Because the jury here is too busy as too busy to care.
• 6:03
  SPEAKER_00: And if you're a clinician, here's what I want you to take from this episode.
• 6:08
  SPEAKER_00: Start documenting the negative space.
• 6:11
  SPEAKER_00: If you didn't do something because it wasn't indicated, write that.
• 6:16
  SPEAKER_00: If you had a conversation about risks and benefits, write down what you said.
• 6:21
  SPEAKER_00: If you called the covering physician at 2 a.m.
• 6:23
  SPEAKER_00: nurses, write down the time and the response.
• 6:26
  SPEAKER_00: You don't need a novel.
• 6:28
  SPEAKER_00: You need enough detail to tell the story six years later.
• 6:31
  SPEAKER_00: And above all, never fill a gap with a fabrication.
• 6:37
  SPEAKER_00: A late entry is legal if it's honest and identified as late.
• 6:43
  SPEAKER_00: An altered record is a career-ending mistake.
• 6:47
  SPEAKER_00: I'd rather see a blank space with a note that says entry added on this date to clarify than see a clinician try and explain why the timestamp on their note was changed.
• 6:57
  SPEAKER_00: If it happened in the moment, say so.
• 7:00
  SPEAKER_00: If you don't remember, say that.
• 7:03
  SPEAKER_00: Juries forgive honest uncertainty far faster than they forgive a cover up or a lie.
• 7:10
  SPEAKER_00: And if you're an attorney on the other side, don't wait until deposition to discover the hole.
• 7:15
  SPEAKER_00: In discovery, ask for the complete medical record.
• 7:20
  SPEAKER_00: A certified copy of the complete medical record.
• 7:24
  SPEAKER_00: Not just the clinical notes.
• 7:26
  SPEAKER_00: Ask for audit trails, metadata, system logs, the facilities policies on late entries.
• 7:32
  SPEAKER_00: Depose the records custodian if you have to.
• 7:34
  SPEAKER_00: Ask them how the EMR handles backdating, whether edits are visible.
• 7:39
  SPEAKER_00: Who has the ability to delete a note?
• 7:41
  SPEAKER_00: You'd be surprised how often a facility's answer to those questions opens a door.
• 7:47
  SPEAKER_00: And when you find a gap in the medical chart, don't assume malpractice.
• 7:52
  SPEAKER_00: Ask what the policy required.
• 7:54
  SPEAKER_00: Ask who was responsible.
• 7:56
  SPEAKER_00: Ask what training the provider received.
• 7:59
  SPEAKER_00: Because there's a world of difference between a doctor who failed to check a blood pressure and a nurse whose note was deleted by a system glitch.
• 8:09
  SPEAKER_00: Your job is to tell those two stories apart.
• 8:13
  SPEAKER_00: The evidence is there if you know where to look.
• 8:16
  SPEAKER_00: So here's the takeaway.
• 8:23
  SPEAKER_00: It's not just a communication tool.
• 8:26
  SPEAKER_00: In a courtroom, it's the raw material for trust.
• 8:30
  SPEAKER_00: Every missing note is a space someone else will fill with the words that benefit them.
• 8:36
  SPEAKER_00: Clinicians, chart like your work on your best day is about to be read by twelve strangers.
• 8:44
  SPEAKER_00: Attorneys, interrogate the record like the truth is hiding in what's not there.
• 8:51
  SPEAKER_00: And if you've got documentation horror story de-identified, of course, send it to us.
• 8:58
  SPEAKER_00: We'd love to turn it into a future episode.
• 9:05
  SPEAKER_00: If it was useful, follow the show so the next one finds you.
• 9:08
  SPEAKER_00: And if you're a clinician who wants to do this work properly, start with the Expert Report Starter Kit at Nationalexpertacademy.com.
• 9:15
  SPEAKER_00: I'm Tracy Libratori.
• 9:17
  SPEAKER_00: I'll see you on the next episode.