Why Accurate and Current Medical Records Matter

This issue was the focus of attention in the NSW Supreme Court case of C S v Anna Biedrzycka [2011] NSWSC 1213, involving follow-up of a patient undergoing HIV testing.

In 1999, patient Ms LB attended the medical centre where two of the defendant doctors practised with a number of other doctors. At that time, LB was living in Bondi.

On 30 March 2004, LB returned to the practice. She was then living at a different address in North Bondi. At the consultation, LB requested a test for sexually transmitted infections, including HIV. She was counselled by the attending doctor, Dr Biedrzycka, and arrangements were made for the pathology tests to be carried out by a nurse employed by the practice. LB was asked to return to the practice for the results in about a week’s time.

At no stage during this visit did anyone confirm with LB that her address, as it appeared in the records, was current.

On 5 April 2004, another doctor at the practice, Dr Johnson, received a telephone call from the pathology laboratory. The laboratory indicated that the patient’s results were equivocal with respect to the HIV test and that the patient needed retesting. Having received the advice, Dr Johnson wrote in the patient’s records: “By phone, needs bloods repeated, pos result, needs repeat.” That same day Dr Johnson directed the administrative staff of the practice to send a recall letter to LB.

LB next attended the practice of her own volition on 22 April 2004. She asked to see Dr Biedrzycka and was told she wasn’t available. The patient then saw the next available doctor, Dr Gross. Dr Gross reviewed the pathology results on the computer. He interpreted LB’s test results as negative, with the exception of candida. Dr Gross did not carry out any further enquiries and did not read the part of the patient’s record that included Dr Johnson’s note of 5 April 2004. Dr Gross advised the patient that her tests were clear except for the candida swab.

LB left the practice with the impression that it was safe to engage in unprotected sexual intercourse. LB advised her partner, Mr CS (the plaintiff in the proceedings) accordingly, and they engaged in at least one episode of unprotected sexual intercourse about one week after 22 April 2004.

On 12 May 2004, Dr Johnson was advised by staff that there had been no response to the patient recall letter. Dr Johnson directed that a telephone call be made to the patient, but those attempts were unsuccessful. A further letter of the same date was sent, again requesting LB to attend the practice as soon as possible. Dr Johnson also made an entry in LB’s clinical records, which read in part that: “this patient needs her HIV serology repeated as there is a suggestion that the serology tests were POS.”

The following day, the staff informed Dr Johnson that the telephone number for LB as stated in their records was incorrect. From that time until the end of May, Dr Johnson made various enquiries through the Sydney Hospital Sexual Health Clinic, ultimately resulting in a representative of the Clinic making contact with LB’s father. LB attended the practice on 3 June 2004, and was told of the need for re-testing for HIV. The HIV test was subsequently confirmed to be positive.

Be specific when entering test results in a patient’s medical records – this is particularly important in group practices where a patient may not be seen by the same doctor at each consultation.

Medico-legal issues

LB’s partner, CS, contracted HIV and subsequently commenced proceedings against three of the doctors at the practice, together with the corporate entity that provided all relevant administrative services and facilities to the practice under a contractual agreement with the doctors. CS settled his claim with doctors Gross and Johnson, who agreed to pay damages to him. The remaining two defendants (one of whom was the corporate entity) had verdicts entered in their favour.

Following settlement of the claim, doctors Gross and Johnson filed a cross-claim against the corporate entity seeking contribution towards the damages paid to CS under the settlement agreement. The doctors alleged that the administrative staff of the practice were negligent in failing to maintain proper records, leading to the patient being lost to follow-up. The corporate entity also filed a cross-claim against all three defendant doctors seeking indemnity under the services agreement that it had entered into with each doctor.

One of the issues that came before the court for determination was whether a duty of care extended to an indeterminate number of people with whom LB may have been in contact. In considering this, the judge pointed to the following issues:

• The corporate entity was in the business of providing health care and knew of the harm that would result to others (in this case, CS) if there was a failure to promptly notify a patient of a serious medical condition.
• The corporate entity had assumed responsibility for keeping accurate and current patient records.
• The harm to CS would have been averted had the corporate entity, through its administrative staff, complied with its own documented procedures for maintaining accurate patient computer records, including updating and modifying existing records.

Based on the above analysis, and having regard to the strict legislative requirements governing the notification and treatment of HIV, the judge found that the corporate entity did owe the patient and her sexual partner a duty of care. The failure of the practice (i.e the corporate entity through its administrative staff) to keep accurate and current patient records was also found to be causally related to the harm suffered by CS. The fact that Dr Gross failed to review all of LB’s test results on 22 April 2004, when advising LB that her tests were clear except for the candida swab, did not operate as an intervening act to absolve the practice of liability.

The court then considered the liability of Dr Johnson, who initially took the call from the pathology laboratory on 5 April 2004. It was found that Dr Johnson’s entry in the patient’s records was insufficient, in that it required other doctors at the practice to seek clarification from Dr Johnson with respect to his entry before being in a position to properly treat and counsel LB. Similarly, the judge found that Dr Johnson took insufficient steps to ensure the early recall of the patient.

Risk management strategies

It is clear from this case the importance of maintaining correct and current patient information. Some practical tips flowing from this case include:

• Keep patient information current by confirming contact details at each consultation. Don’t rely on patients to volunteer this information.
• Ensure there is an effective system in place for recalling patients, including promptly following-up unanswered recall letters (see Section 1.5.3 of the RACGP Standards for general practices).
• Be specific when entering test results in a patient’s medical records – this is particularly important in group practices where a patient may not be seen by the same doctor at each consultation.