Contact Us: 844-466-7225

Poor Documentation of Text Messages Complicated Defense of a Malpractice Claim

May 19, 2023

Text messaging can provide quick, efficient communication between physicians and patients. In malpractice litigation, it can also prove physician attentiveness and responsiveness. However, text messages can complicate the defense of a malpractice claim, particularly if they are not integrated into the patient record. Consider how documentation issues unnecessarily complicated the defense in the following case.

surgeon texting at deskCase File

Issue: Contradictory and unprofessional text messages complicated the defense.

On January 5, a patient presented to a podiatric surgeon for a progressively stiffer and more painful big toe. The surgeon diagnosed the patient with hallux rigidus (degenerative arthritis of the first metatarsophalangeal [MTP] joint). Various conservative treatments were not effective, and the patient ultimately underwent a corrective osteotomy on June 10. Antibiotics were prescribed prophylactically for infection control. On June 17, the surgeon noted the wound was healing normally with no cellulitis or streaking redness, just ecchymotic changes consistent with surgery. Antibiotics were continued.

According to text messages between the surgeon and patient, the patient was seen in the surgeon’s office after hours on June 28 for wound drainage and foot swelling. The surgeon did not document this visit in the patient’s medical record; however, he later testified that he would have documented something if he suspected infection. On July 5, the patient texted that his physical therapist suspected infection. The surgeon ordered an additional course of antibiotics.

On July 25, the patient texted that his physical therapist removed his stitches and the wound looked almost healed. During the text message exchange, the patient attached a photograph of his toe and the surgeon replied, “Looks good.” However, in the beginning of September the patient started texting about increasing pain and stiffness in his toe. He presented to the surgeon’s office on September 15. The surgeon determined the first surgery failed, and he scheduled a first MTP joint arthrodesis surgery for September 24. The second surgery was completed without complication.

The patient was prescribed antibiotics prophylactically. Postoperative visit notes dated September 29 indicated the patient was healing nicely with no sign of infection. The patient presented for follow-up on October 5. The surgeon noted increased drainage, but no signs of infection. Antibiotics were continued. On October 12, the patient presented with complaints of pain, warmth, and profuse drainage. The surgeon recommended admission to the hospital for debridement and irrigation.

At the hospital, the patient was diagnosed with osteomyelitis and ultimately required an amputation of his toe. He filed a lawsuit against the surgeon alleging his failure to diagnose and treat postoperative infection resulted in osteomyelitis and amputation.


The defense team believed the standard of care criticisms in the case would have been surmountable if the surgeon had documented his interactions with the patient in an appropriate manner. Although the text message exchanges helped the case (as they showed the surgeon was very attentive) there were various issues with the text messaging that diminished the defensibility of the case. For example:

  • Despite the sometimes-daily contact with the patient, there was nothing documented in the patient’s medical record from June 17 to September 15.
  • The texts were written in text message shorthand (e.g., “2” for to/too, “B” for be, “R” for are, “U” for you, “Y” for why, etc.), which appeared unprofessional.
  • The physician relied on poor-quality cellphone photographs of the surgical wound for the purpose of diagnosis and follow up.

Finally, the surgeon had a habit of dictating patient visit notes many weeks after encounters. Even though he believed his excellent memory resulted in accurate documentation despite the time lag, most of the medical record documentation in this case occurred after the patient had been diagnosed with osteomyelitis. This gave the impression that the surgeon was defensively documenting, which the plaintiff’s attorney was expected to use to undermine the veracity of the defense evidence. It also appeared that the surgeon did not refer to his text messages when completing the EHR documentation, as the two sources of information were contradictory.

Risk Reduction Strategies

Gaps in a patient’s medical record caused by absent text message exchanges can complicate the defense of a medical malpractice claim. Filling the gaps with texts full of inappropriate abbreviations, typos, and superficial exchanges can be equally damaging. Consider the following strategies:

  • If your EHR does not integrate text messages, develop a system to ensure that all text messages used for clinical decision-making are documented in the medical record.
    • When text messages cannot be saved in the EHR, document each encounter as completely as you would document a face-to-face encounter (i.e., dictate, transcribe the text messages, cut and paste the text messages, or print out and scan the text messages into the EHR).
      • Indicate that the patient-physician communication occurred by text messaging.
      • If dictating or transcribing, do not make changes to the original content of the text messages.
    • Do not use text shorthand or any other non-approved abbreviations when sending patient care information. Not only does it appear unprofessional, it can result in confusion, for example, 2Day could mean today or two per day.
    • Beware of autocorrect functions. For example, a phone may change “dilaudid” to “dilated.”
    • Review the content of messages before sending them.
    • Send an asterisked clarification when you notice a mistake after a message has been sent.
    • Confirm receipt of texts, for example by using cellphone read receipt options.
    • Do not attempt to diagnose patient conditions based on poor-quality photographs. If the image quality cannot be adequately improved on the patient side, examine the patient in person.
This content originally appeared in Claims Rx, our claims-based learning publication available in the searchable Claims Rx Directory. For select releases, eligible insureds will also find instructions for obtaining CME credit.

Filed under: Digital Health, Patient Communication, Case Study, Physician, Patient Care, Documentation, culture of safety



Interested in NORCAL Group?

Contact Your Agent/Broker or call 844.4NORCAL today