Introduction
Medical records are supposed to be the gold standard in a malpractice case. But any seasoned trial attorney knows that the real story often lies in what’s missing—or what’s manipulated. In today's EMR-driven healthcare world, records can look clean, templated, and compliant—while concealing critical moments of failure. This guide covers the 10 most common red flags that every attorney should scrutinize while evaluating or litigating a serious injury or wrongful death case.
1. Copy-Paste Syndrome (“Cloning”)
One of the most rampant issues in EMRs is copy-paste documentation. When multiple entries across shifts look identical—especially during moments of deterioration—it signals charting by habit, not observation.
Example: A patient experiencing declining oxygen saturation had 12 hours of identical notes from multiple nurses indicating 'no distress.' The case settled after deposition revealed copy-forward use.
📌 Tip: Request the EMR audit trail. These logs reveal which entries were copied, who entered them, and when. Cross-reference these with vital trends to expose negligence.
2. Time-Stamp Mismatches
If an entry claims care was delivered at 3:00 p.m., but medication logs or nurse call data suggest otherwise, it could point to backdated entries—intentionally or otherwise.
Juries are highly sensitive to fabricated timelines.
📌 Tip: Get metadata and EMR logs during discovery. In one Texas case, audit data proved a note was entered 90 minutes after the patient’s death and falsely suggested stability.
3. Normal Vitals Immediately Before Collapse
Vitals marked as ‘normal’ five minutes before a patient codes raise red flags. Nurses under pressure may enter default readings—especially during high-acuity events.
📌 Tip: Demand bedside monitor logs and device downloads. These often contradict what's in the written chart.
4. Gaps in Charting During Critical Events
If there's a 45-minute window with no nurse documentation during a deterioration, it may be more than oversight—it could be deliberate omission.
📌 Tip: Ask for staffing logs and check for shift changes. Often the gaps align with handoffs or high-pressure moments.
5. Templated SOAP Notes or Physical Exams
A perfectly complete physical exam written at 2 a.m. on a crashing patient? That's a signal of after-the-fact charting.
📌 Tip: Search for boilerplate phrases like “no acute distress” across multiple patients and compare context. It may indicate rubber-stamp charting practices.
6. Unlabeled Late Entries
If an entry is made hours after an event, it must be marked 'late entry' with a reason. When it’s not, the integrity of the entire chart is at risk.
📌 Tip: Depose on charting policy and confirm with the hospital’s record-keeping standards. Show jurors the entry sequence from the EMR audit log.
7. Conflicting Documentation
If one provider notes 'alert and oriented' and another marks 'slurred speech' within the same hour, the defense will claim miscommunication—but you should flag it as a credibility issue.
📌 Tip: Present discrepancies as competing narratives in court. Jurors hate inconsistency.
8. Missing Informed Consent or Family Notes
Often, a patient or family member raises concerns that never make it into the record. Their absence doesn’t mean they didn’t happen—it means the system filtered them out.
📌 Tip: Ask the family during intake if they expressed any concern. If yes, the absence of this in records becomes a liability point.
9. Downtime Charting and Backfill
Hospitals occasionally experience EMR 'downtime'—where notes are jotted on paper and entered later. These gaps are ripe for inconsistency and fabrication.
📌 Tip: Ask the hospital IT team to verify any EMR interruptions. Many attorneys overlook this completely.
10. Medication Discrepancies
If the medication was ordered but not given—or given without a documented order—you may have found a systemic process failure.
📌 Tip: Match MARs (Medication Administration Records) to physician orders and nursing notes. Look for omissions or mismatches.