If the computer ate your charts

• Do whatever you can to retrieve lost patient charts.

• Reconstitute as much information as possible.

• Document evidence of the computer mishap.

Q: My computer service accidentally erased several patient charts, and the backup tapes aren't working either. The company wants to charge me $17,000 to retrieve the records, but it admits that the attempt may not succeed. As bad luck would have it, an attorney has requested one of the records lost in cyberspace. How should I handle this mess? And do I have any legal recourse against the computer service if the missing information could have helped me in a potential lawsuit?

A: You have your work cut out for you. First, try to negotiate with the company to retrieve the files without charge. Your attorney might have to threaten the firm with a civil suit or ask a court to order it to comply. If those strategies fail, consult your malpractice carrier; it may be willing to pay for the retrieval attempt if it considers the records essential to your defense.

Assuming the company can't retrieve the files, try to reconstitute the information in each missing chart. Recall as much of each patient's care as you can. If a patient returns for a subsequent visit, take a new history, do a new intake physical, and ask the patient what he recalls about his care. Date the new records and note in them why you've had to recreate them. Then back up these and all other patient files.

Document the computer mishap separately as well, and keep all evidence of it, including correspondence with the company, in a locked file. Send a copy of your documentation to any malpractice carrier from whom you purchased insurance. One doctor whose paper records were lost in a flood took photographs of the damage in his office. This evidence was presented to his advantage when he appeared as a defendant. Your documentation about the lost computer records can be used the same way. It might help lessen your liability, but there's no guarantee.

If a patient sues you for malpractice, ask your attorney to draft a response that includes information about the missing records. Referring to your old records for history and prior treatment is part of the standard of care, however, so you could still be held liable for any departures. In that case, you could try to include the computer company in the lawsuit, but the onus will probably remain on you.

Plaintiffs whose records were lost may allege spoliation—meaning the intentional destruction—of evidence. When that happens, the plaintiff's attorney will tell the jury that the missing documents would probably have been unfavorable to the defendant's case. Thorough documentation of the error can defeat a spoliation charge, but juries still tend to be suspicious of missing records. Think of all the impaired infant cases that doctors have lost because fetal monitor strips disappeared.

Ultimately, you could sue the computer company, but probably only for breach of contract regarding the loss of the records. Software contracts typically exclude any and all liability on the part of the computer company for "incidental" damages such as a malpractice suit. It will be difficult to prove that the information contained in the missing files would have led to a defense verdict in the malpractice case.

Lee Johnson. Malpractice Consult: If the computer ate your charts. Medical Economics Jan. 23, 2004;81:98.