April 2016: Defending Nonaction in Medical Malpractice Cases

Publication Quarter: 
Spring 2016 (April)

Although defensive medicine has been the focus of numerous research studies and articles in both scholarly journals and consumer publications, far less attention is paid to treatment plans based on a physician's decision not to take action. This month's tip looks at medical malpractice cases in which the central issue was a physician's nonaction, and discusses how nonaction can be defended.

Why It's More Difficult to Defend Nonaction 

It is always easier to defend a physician's actions rather than his or her inaction. Ordering a test, prescribing a medication, or admitting a patient creates a record that enables defense counsel to argue that the physician was actively involved in the patient's care even if the physician failed to enter thorough notes. However, when a physician determines that nonaction is in a patient's best interest, a thorough explanation for that decision must be entered into the patient record. Consider the following scenarios from our case files:

  • A patient has a mammogram that is read as low suspicion for any cancer, but the report states a mass cannot be ruled out and clinical correlation is recommended. The patient then sees a breast surgeon with the results of same. After doing an exam and reviewing both the mammography studies and the report from same, the surgeon elects NOT to perform a biopsy. A year later, the patient is diagnosed with breast cancer, DCIS, and sues the surgeon and the radiologist alleging a delay in diagnosis and consequentially a poorer prognosis.
  • A 42-year-old patient with a history of smoking and elevated cholesterol visits her internist with complaints of mild epigastric discomfort. An examination is done and without performing an EKG. The patient is provided with a diagnosis of gastroenteritis. No cardiology work up is done – no EKG, ultrasound, stress test, cardiology referral. Two days later the patient has an MI and dies.

Nonaction and the Medical Record 

The law recognizes that there are many different ways to evaluate or treat a given problem, and that every physician is entitled to exercise reasonable medical judgment. However, the record must reflect a physician's judgment, and the basis for that judgment, in order to offer insight into his or her decision-making. When electing not to take a particular action, the medical record must reflect the reasoning for that decision. 

Furthermore, the medical record must reflect that the patient was informed of a decision not to take action. Engaging in a thoughtful conversation with the patient about his or her care is always of paramount importance, particularly when the plan of care revolves around a decision not to take action. The note should reflect that physician educated the patient appropriately about the benefits, risks, and alternatives of such a decision. 

While a physician may have sound medical reasons for deciding not to take action in a particular case, those reasons may be rendered meaningless if defense counsel cannot produce documentation created at the time such decisions were made and when they were communicated to the patient. 

In the examples above, the physician should document:

  • Why he or she elected not to perform a biopsy – the patient reports no masses, no discharge, no nipple dimpling or inversion. The patient acknowledges awareness of the mammogram results and wishes to continue with conservative management, knowing that she could have a needle guided biopsy.
  • Why a cardiology work up was not warranted – the pain did not radiate, was not related to exercise, there was no family history of cardiac disease, etc. 


The medical record should tell a complete and accurate story that facilitates patient care while also documenting information and actions taken - or not taken - in the event of a claim or lawsuit. In the case of nonaction by a physician, timely, thorough documentation is critical, as it mitigates the plaintiff's argument that the physician's nonaction deviated from accepted standards of care. Lack of documentation provides plaintiff's counsel with the opportunity to create a narrative that benefits the plaintiff's case.

For a comprehensive review of medical charting best practices, refer to the HRA publication "Medical Charting: How the Medical Record Can Best Support a Physician in Litigation" available for download here