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Bizarre Medical Malpractice Case: Surgeon Failed To Sufficiently Create A Medical Record Documenting The Procedure

Medical providers are required to maintain proper notes and documentation when caring for patients for many reasons. In medical malpractice, claims these records are critical to understanding the nature of the care provided and to assess whether the applicable standards were met. What happens if no record exists, or the documentation is grossly insufficient?

Rickie Henderson filed a malpractice claim against Dr. Elliot Kleinman, a podiatrist in Indiana after he performed a surgery on her right foot that left her with chronic pain. Initially, the claim was reviewed by a medical review panel that was unable to determine if the standard of care was met because Kleinman’s notes lacked sufficient detail. The Indiana Court of Appeals ultimately affirmed that summary judgment in favor of the defendant was appropriate.

Unprecedented Circumstances

The appellate court described this case as “extremely unusual,” as a failure to maintain sufficient records in these situations is not addressed in the state’s statutes or case law. Indiana law in section 16-39-7-1 does require medical providers to create medical records and maintain them for a seven-year period; however, it does not specifically extend to discuss how such as failure applies to cases of medical negligence.

The state requires that a Medical Review Panel review claims of malpractice to be sure that they have merit.

Plaintiff’s Revised Complaint for the Superior Court

In Henderson’s appeal, the complaint alleged the following:

  • Dr. Kleinman demonstrated a failure to adhere to proper medical standards in both surgical performance and documentation of medical records
  • The Medical Review Panel’s inability to assess the surgical performance due to the poor documentation was alone adequate evidence that the standards of care were not satisfied
  • That the burden of proof for a malpractice claim was met because:
    • The plaintiff incurred an injury
    • The injury was the result of the surgery
    • The defendant exhibited negligence that was below the accepted standards

Basis for Affirmation of Ruling

The defense called upon Dr. J. Michael Miller, a podiatrist, who rendered an opinion that based on the available information, Kleinman had adhered to the proper standards of medical care in the treatment of the plaintiff. Based on this finding, the court granted summary judgment favoring the defendant. The court found that the defense did produce evidence that the standards were met, while the defense did not sufficiently present evidence to the contrary. The appeals court issued a unanimous decision; however, Judge Edward Najam suggested that in this context, the lack of proper medical documentation created a situation similar to a party “suppressing evidence.”

Importance of Proper Documentation

According to the Centers for Disease Control & Prevention (CDC) nearly 87% of office-based physicians use a system of electronic medical records. Medical providers are increasingly being required to make proper documentation in order to receive insurance reimbursement for services provided. The majority of medical providers also view proper documentation as a critical means of defending themselves in the event of a claim of malpractice. Without detailed records of a patient’s care, different providers that care for a patient such as their primary care physician, specialists, and those treating them in a hospital lack critical information such as medical history, medication regimen, allergies and more.

About the Author

Briggs Bedigian
Briggs Bedigian

H. Briggs Bedigian (“Briggs”) is a founding partner of Gilman & Bedigian, LLC.  Prior to forming Gilman & Bedigian, LLC, Briggs was a partner at Wais, Vogelstein and Bedigian, LLC, where he was the head of the firm’s litigation practice.  Briggs’ legal practice is focused on representing clients involved in medical malpractice and catastrophic personal injury cases. 


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