In a context of increasing judicialization of healthcare, medical-legal risk no longer depends solely on the occurrence of an adverse event, but above all on the ability of the caregiver or institution to demonstrate the quality, traceability, and fairness of the care provided.

Analysis of litigation cases shows that medical records, patient information, and medical confidentiality are the three main pillars of defense in the event of legal action.

1. Medical records: the first line of defense for healthcare providers and institutions

"What isn't planned isn't done."

In forensic expertise or ICC cases, the patient file is the sole basis for analysis by the expert and then by the judge. The professional's word is not enough.

Key recommendations

• Record all actions, even when they appear "normal" (surveillance, medical visits, time-stamped "all clear" reports).
• Clearly identify each contributor (legible name, position, date, time).
• Record medical decisions, including those made by telephone.
• Mention the patient's specific risks (falls, suicide, infection, bedsores, etc.) and the measures put in place.
• Record the preventive measures given to the patient (e.g., smoking cessation, compliance) to avoid any subsequent disputes.

👉 A comprehensive file allows the judge to determine that the obligation of means has been properly fulfilled, even in the event of complications.

2. Patient information and consent: a key issue of responsibility

Lack of information is now one of the most common grounds for conviction, even in the absence of technical fault.

What the law requires

• Fair, clear, appropriate, and understandable information.
• Concerning:
  • expected benefits,
  • frequent or serious risks that are normally foreseeable,
  • therapeutic alternatives,
  • the consequences of refusal.
• Information provided before, during, and after the procedure, if necessary

Operational recommendations

• Record the content of the dialogue in the file, not just the delivery of a document.
• Use writing as a supplement, never as a mere discharge.
• Obtain written confirmation of a refusal of treatment.
• In the event of damage, inform the patient within 15 days of its discovery (Art. L1142-4 CSP).

⚠️ In litigation, written evidence alone is insufficient: it is the consistency between the dialogue, the case file, and the facts that is assessed.

3. Medical confidentiality: a breach that is heavily penalized

Medical confidentiality is a principle of public policy, the violation of which is punishable by criminal, civil, administrative, and disciplinary sanctions.

Key points to watch out for

• Never disclose medical information to a third party without legal basis or the patient's consent.
• Be wary of informal requests (by phone, from friends and family, employer, insurer).
• Secure access to files (IT, premises, authorizations).
• Train all staff, including non-medical personnel, in medical confidentiality.

Key recommendation

Always ask yourself, "What is in the patient's best interest?" before sharing any information.

4. What you should never do (aggravating factors in court)

Certain practices systematically aggravate liability:

• Modifying a file retrospectively without traceability (risk of falsification).
• Make value judgments or subjective statements.
• Include information from a CREX or RMM in the patient file.
• Failure to record a refusal, a departure against medical advice, or a collegial decision.
• Refusing or delaying the transfer of a file to the patient (possible penalties)

5. Seizure of medical records and legal proceedings: adopting the right approach

In the event of judicial seizure:

• Never obstruct justice.
• Require compliance with formal requirements (letter rogatory, inventory, seals).
• Always keep a copy for continuity of care and defense purposes.

In case of a complaint:

• Remain empathetic, without admitting fault.
• Notify your insurer immediately.
• Never propose a spontaneous transaction.

Conclusion: reducing medical-legal risk is above all a professional culture

Preventing legal risk relies less on clinical perfection than on:

• rigorous traceability,
• high-quality patient information,
• strict adherence to medical confidentiality,
• and a shared culture of patient safety within teams and institutions.

👉 In practice, well-maintained records and properly informed patients are the best legal protection for healthcare providers.

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