Unprofessional Text Messages Complicated Defensibility of a Malpractice Claim

The medical record is not the forum for blame, personal attacks, or finger pointing.¹ Text messages relating to patient care should be considered part of the medical record (whether they are transferred to it or not), and the same rule about appropriateness of forum should apply. If something about patient care is important enough to be texted, it should be included in the medical record. If it is something that does not belong in the medical record, then it should not be texted. It seems clear that the members of the healthcare team texting each other in the following case study did not expect their text messages to be used against them in the malpractice lawsuit.

Case File

Issue: Unprofessional text messages complicated the defense of the malpractice claim.

A complication occurred during surgery that resulted in the patient’s death. Two of the physicians on the surgical team carried on a lengthy text message conversation following the patient’s death. The text messages included:

• Admissions of liability
• Considerations of manipulating the facts to deflect fault from themselves
• Considerations of withholding knowledge about the cause of the complication
• Criticisms of the review and handling of the unanticipated outcome and anticipated handling of the malpractice claim
• Negative reviews of the peer review committee meeting
• Criticisms of the patient’s family
• Name-calling of hospital administrators

The text messages about hospital administrators included: “They are a bunch of bloodsuckers,” and “They are so STUPID!” One physician referred to the hospital as “a s**t show.”

Discussion

Although the text messages were extensive, the medical record documentation was sparse. The combination of the lack of documentation that could have contributed to standard of care and lack of causation defenses, and the dangerous texts significantly diminished the defensibility of this claim.

Risk Reduction Strategies

Consider the following risk management strategies:²

• Before you send a text message, imagine reading it as a third party. If the message reflects poorly on your character, contains negative comments about a patient, or comes across as unprofessional, do not send it.
  • Avoid sarcasm and negative comments when discussing patients or colleagues.
  • Do not vent frustrations.
• Do not intersperse personal matters with text messages about patient care.
• Be cautious about how you respond to colleagues’ messages. Using a “like” or “laugh” emoji in response to a controversial or inflammatory message may come across as condoning your colleague’s behavior.
• Hold colleagues accountable for unacceptable text messages.

References

1. Dominique A. Pollara. “What to Do When Things Go Bad: A Perspective from Defense Counsel.” International Anesthesiology Clinics. 2020; 58(1): 56-58.

2. “Text Messaging in the Workplace – Think Before You Send.” Hinkle Law Firm. 5/19/2020.