In medical malpractice defense, what is not included in the record can be just as powerful as what is. Skilled plaintiffs’ attorneys use missing documentation to their advantage, and we must do the same. Gaps in documentation can sometimes be an opportunity to challenge assumptions and build doubt about the plaintiff’s version of events.
Plaintiffs’ experts often attempt to reconstruct what “must have happened” or what “should have been done,” but their theories can unravel when there’s no support in the contemporaneous documentation. We use this to our advantage. If a symptom was allegedly present but never noted, or if a complaint wasn’t documented despite multiple encounters, that silence can raise legitimate questions: Was it truly there? Was it as significant as claimed? Or is it being exaggerated after the fact?
We also scrutinize what the records do show. When providers carefully documented other findings but not the one being alleged as missed, it can reinforce the argument that the claimed issue wasn’t actually present. And when different providers over multiple days make no mention of a critical symptom or concern, that absence becomes a pattern that juries can understand and draw conclusions about.
In these instances, gaps in documentation can strengthen the providers’ case, because many jurors expect the medical record to be a complete and accurate reflection of what happened. We use that expectation to highlight when the plaintiff’s story doesn’t align with the written facts. In close cases, these gaps can create the doubt that tips the balance in our client’s favor.
If you need assistance with a legal matter, our experienced attorneys at Waranch & Brown can help.