How Does Documentation Relate to the Standard of Care?

“If it’s not documented, it didn’t happen,” is a phrase used frequently, particularly by plaintiff attorneys in malpractice lawsuits. Physicians, advanced practice providers (APPs), and their defense attorneys know it’s often not true. Regardless of the setting, from medical offices to the ICU, health care is fast-paced, and treatment, cautionary advice, and/or recommendations may be provided but not fully documented.  

Another thing defense attorneys know, but physicians and APPs may not entirely understand, is that thorough documentation strengthens the clinician’s ability to prove that he or she met the standard of care in a medical negligence lawsuit. In contrast, incomplete, inaccurate, or missing documentation generally hinders the defense. Depending on the case, documentation concerns may lead the attorney to recommend settlement over proceeding to a jury trial. In this article, MICA’s Risk Team explains for clinicians how timely, accurate, and thorough documentation helps you prove that you met the standard of care. 

Proving a Claim of Medical Negligence 

To prevail in a medical negligence lawsuit, a plaintiff must convince a jury of the following: 

• • There was a clinician-patient relationship (i.e., clinician owed a duty to the patient arising out of this relationship).
     
  • The clinician breached the applicable standard of care (for more information on the standard of care read MICA article What is the Standard of Care?).
    
    
  • The breach caused injury to the patient (but for the breach, the injury would not have occurred). 
    
    
  • As a result, the plaintiff suffered damages (prove damages with reasonable specificity). 

Defending Against a Claim of Medical Negligence 

Assuming a clinician-patient relationship exists, a clinician and his/her attorney will defend a timely filed malpractice case by: 

• • Demonstrating that the clinician met the applicable standard of care. 
     
  • Convincing jurors that even if they decide the clinician breached the standard of care, that breach did not proximately cause the plaintiff’s claimed injuries. 

To prove the clinician met the standard of care, defense attorneys present various forms of evidence to the jury, including: 

• • Medical records;
    
    
  • Defendant clinician’s testimony that he/she met the standard of care;
    
    
  • Testimony from a qualified expert witness actively practicing in the same specialty as the defendant about what the standard of care requires and how the clinician complied; and
    
    
  • Relevant medical literature that the clinician defendant or standard of care expert considers credible. 

When determining whether to recommend settlement of a case, defense attorneys evaluate the risks of going to trial. A weak standard of care defense is one risk that increases the probability of jurors returning a plaintiff’s verdict. As discussed in more detail below, poor documentation by the clinician defendant weakens the standard of care defense. 

Sometimes the standard of care defense is weak, but the medicine underpinning the causation defense is solid. Yet, relying on a causation defense at trial can be risky for the clinician defendant. Jurors may not follow the complex medical issues associated with some causation defenses. Also, jurors who decide the clinician fell below the standard of care may tune out evidence related to causation despite the judge’s instructions that plaintiff must prove both causation and a standard of care deviation. Because of this, a solid, persuasive standard of care defense is preferable. 

How Documentation Quality Can Strengthen the Standard of Care Defense 

Thorough, timely, objective documentation helps clinicians prove up their care to jurors in multiple ways, described below. 

Provides detail to refresh the clinician defendant’s memory 

Lawsuits are filed years after the care at issue, not the next week or month. As time passes, memories fade. By the time physicians and APPs testify in deposition or trial, three to five years or more may have passed since the time of the events. Many clinicians do not remember the patient or the care. If they do have a vague memory, they generally do not remember the details of conversations, thought processes, exam findings, and other information relevant to proving they met the standard of care.  

Thorough documentation provides the details a clinician forgot. It serves to refresh the memory of physicians and APPs when they testify on their own behalf, enabling them to explain to jurors how they met the standard of care. Clinicians should remember this as they churn through the daily grind of documentation. Defense of a later lawsuit may depend on the quality and thoroughness of notes written today. 

Supports a stronger expert witness opinion 

Thorough, accurate, timely documentation also supports a stronger expert witness opinion on behalf of the clinician. An expert witness retained to testify that the defendant physician or APP met the standard of care will form that opinion based, in part, on the medical records. 

When documentation is sparse, sometimes an expert gives the clinician the benefit of the doubt. The expert will “assume” that the physician or APP did things a certain way that complies with the standard of care (even though the details are not documented), because that is what the clinician would have learned in their education and training.  

Plaintiff attorneys will attack the strength and credibility of these types of opinions because they are not based on documentary evidence. Through cross-examination in deposition or trial, the attorney will pick away at opinions based on assumptions, potentially weakening the credibility of the expert’s opinion in the eyes of jurors deciding the case.  

More credible than custom and practice testimony 

Timely documentation, completed at the time the care was provided, is often more credible and convincing to jurors than “custom and practice” testimony. When a physician or APP is unable to remember details of the care provided, they often testify about what they “would have done” in this situation because it’s what they “always” do under similar circumstances. This is custom and practice testimony. 

Consider a lack of informed consent claim where a patient suffered foot drop caused by a sciatic nerve injury allegedly sustained during a hip replacement procedure. The orthopedic surgeon’s consent note was a one-sentence, general description of the risks he conveyed to the patient. He had no recall of the consent conversation. The patient claimed that had she known she could develop foot drop, she would not have had the procedure. She asserted the physician never mentioned the risk of sciatic nerve injury or foot drop. Since the note did not specifically mention sciatic nerve injury as a risk, the physician testified that although he did not recall the conversation, he certainly “would have” told the patient of that specific risk, because he always includes that information when consenting patients for hip replacement.  

Jurors may discount the credibility of custom and practice testimony because they believe the defendant is motivated to fabricate or exaggerate the details of care in order to defend the lawsuit. In the example above, they may doubt the physician’s testimony that he discussed the risk of sciatic nerve injury because it is not specifically mentioned in the note. In contrast, if the physician had documented the consent conversation in more detail, jurors would likely consider this more credible because there was no motive at that point to exaggerate (because no adverse event leading to litigation had yet occurred). 

A Word About Documentation and Licensing Board Investigations 

Documentation is equally essential to demonstrate to a licensing board that the clinician met the standard of care. In most states, failure to appropriately document patient care is considered unprofessional conduct and can result in licensing board disciplinary action. 

In addition, physicians should closely examine whether they are adequately documenting their thought processes and clinical rationale. Licensing boards often scrutinize both. The Arizona Medical Board disciplinary decisions frequently fault licensees for failure to properly document these two things, especially in the context of medication prescribing. 

Favorable resolution of some board investigations may depend more on the medical record - and whether a defense attorney can use it to seamlessly explain the physician’s decision-making process from start to finish - than on the physician’s written response and oral testimony. According to one legal author discussing current nationwide trends in board investigations, 

“In a growing number of actions, the dispositive issue is not whether the ultimate clinical outcome was adverse, but whether the documented assessment, differential diagnosis, and plan form a coherent and defensible logic sequence. Where that sequence cannot be reconstructed from the record, boards are more likely to characterize the care as a deviation from the standard of care—even where the underlying clinical interventions may fall within a range of acceptable practice….Records that fail to demonstrate how a clinician progressed from observation to conclusion—and from conclusion to action—are increasingly treated as evidence of flawed reasoning rather than incomplete documentation.”¹

Case Examples With Documentation Lessons Learned  

Sometimes, stories are the best teachers of lessons. Memorable stories tend to stick in your mind, so you remember the lesson. With this in mind, MICA’s Risk Team offers these examples of documentation weaknesses that, if avoided at the time of care, might have strengthened the defense of the later lawsuits. The examples are loosely based on closed claims. 

Case 1

• • Male patient, age 70 presented to ED after being diagnosed with COVID a week earlier. On exam, O2 sats were in the 80s and D-dimer was elevated.
    
    
  • Patient admitted to hospital for 4 days where he had some lower limb weakness and neurological complaints but no pain.
    
    
  • Patient refused inpatient vascular workup.
    
    
  • Patient discharged with instructions to see his PCP and arrange for outpatient Doppler.
    
    
  • Two days later, patient seen and examined at his PCP’s office by NP. NP noted in H&P that, per patient (not review of records), patient had severe muscle cramps while hospitalized and the physicians were concerned about DVT but tests were negative. Patient reported he was diagnosed with PAD in the past but never pursued treatment. On exam, patient’s legs were cold and numb, left leg blue at toenails, and patient could not feel feet. NP’s assessment was PAD/ischemic foot.
    
    
  • NP’s notes confirmed that NP referred patient to a vascular specialist, called the specialist, and scheduled a next-day appointment for the patient.
    
    
  • After lawsuit filed, NP testified that he told patient during the exam that the patient should return to the hospital ED immediately because he could lose his legs, but patient did not like the hospital and did not want to return.
    
    
  • NP did not document in the medical record his warning and instructions to return to the hospital.
    
    
  • Patient went to vascular appointment the next day but ultimately lost both lower limbs. Patient sued multiple health care defendants. 

Lesson learned: Document all cautionary warnings and recommendations. Documentation made at the time of the events is more credible and persuasive to jurors than testimony during the lawsuit. Patient/plaintiff may deny that the clinician told him to go back to the ED, creating a “he said/she said” dilemma for jurors. 

Case 2 

• • Patient had surgery for mouth cancer. 
    
    
  • Surgery extended into neck for lymph node removal.
    
    
  • Surgery ended late day.
    
    
  • Surgeon sent unintubated patient to the medical surgical floor of a community hospital.
    
    
  • Nursing staff became increasingly concerned about the patient and his respiratory function in the 6-hour period after the surgery.
    
    
  • Nurses placed calls/pages and documented some in the chart.
    
    
  • Nurses talked to an on-call surgeon who did not come to bedside.
    
    
  • Nurses began calling hospital house supervisor who was a 1st year family medicine intern assigned to that function as part of his rotation.
    
    
  • Resident spoke with nurses and came to bedside multiple times.
    
    
  • Resident communicated by phone with the surgeon.
    
    
  • Resident involved his attending (a hospitalist).
    
    
  • Around midnight, resident went to ED to get ED physician because patient’s condition was deteriorating. ED physician responded and attempted with difficulty to intubate patient.
    
    
  • Shortly after, surgeon arrived and took patient to OR.
    
    
  • Patient did not survive the hospitalization.
    
    
  • No documentation of any calls between resident and surgeon.
    
    
  • No documentation of any communications between resident and attending.
    
    
  • No documentation in the chart by attending or resident.
    
    
  • Surviving family members sued hospital, hospitalist attending, resident, and surgeon.
    
    
  • Surgeon and resident remembered the events but had limited recall of details. Attending had no memory of being involved. 

Lesson Learned: Gaps in documentation generated unanswered questions and weakened the ability of all defendants to defend the claims.  

Questions included: 

• • Did nursing talk to surgeon?
    
    
  • What was discussed?
    
    
  • How many times and when did nursing call intern/house supervisor? What was discussed?
    
    
  • How many times and when did resident call surgeon? What was discussed?
    
    
  • When did resident involve attending? What was discussed?
    
    
  • What was attending’s involvement in the care? 

Defense counsel obtained cell phone records and answering service records which were minimally helpful in creating a timeline of communications. 

For a stronger defense:  

• • Physicians and APPs, inpatient and ambulatory, should document all communications about patient care regardless of when, where, or how they occur.
    
    
  • All texts and emails should be saved to the medical record.
    
    
  • Clinicians, MAs, and front office staff should document all calls in the medical record.
    
    
  • Clinicians should record call details in the record even when calls occur at odd hours or when the clinician is not in front of the EMR. 
    
    

MICA’s Risk Team is Here for You

If you are a MICA insured, MICA’s Risk Consultants are here to offer documentation tips and guidance. Call or email us with questions at rm_info@mica-insurance.com or 800-705-0538.

^{[1] Michelle Carroll, How Medical Boards Are Scrutinizing Clinical Reasoning: A Guide for Health Care Attorneys, AHLA Health Law Weekly, April 26, 2026. https://www.americanhealthlaw.org/content-library/health-law-weekly/article/fcc636d3-3dd0-44b2-9586-3fc9cffb4a86/how-medical-boards-are-scrutinizing-clinical-reaso}