Text messages about patients can become discoverable evidence in litigation—but many physicians don't think twice about sending them. Kristen Janicek, RN, JD, of Curi Insurance explains how provider-to-provider texting about patients can shape a malpractice claim.

A curbside consult used to happen in a hallway and disappear the moment both doctors walked away. Today, it happens over text—and it doesn't disappear. It sits on a phone, syncs to a cloud backup, and waits to be discovered.

At Curi, we spend a lot of time thinking about the moments that quietly shape a malpractice case long before a lawsuit is ever filed. Provider-to-provider texting about patients is one of the biggest of those moments, and it’s one about which most providers don’t think twice. We've outlined why it deserves a second look and how it plays out once a lawsuit is actually filed.

Key Takeaways: 

• Text messages about patients are discoverable in litigation, even from personal devices, and can surface long after the conversation is forgotten.
• Clinical texting often creates a second, unofficial record that can contradict the official chart, undermining credibility in a malpractice case.
• Timing gaps between a text and the corresponding chart entry can become a central issue in cases where speed of recognition and response is at the heart of the claim.
• Clinically relevant texts should be documented in the medical record, and patient communication should move to secure, HIPAA-compliant platforms whenever possible.

Texts Don't Disapear—They Get Discovered

The first thing physicians need to understand is a legal reality, not a clinical one: text messages are discoverable. In litigation, "discoverable" means the opposing attorney can request them, and in most jurisdictions, courts have been willing to compel their production, even from personal devices, when the messages relate to patient care.

That means a quick text like "pt looks septic, don't love the labs, thoughts?" isn't a private aside between colleagues. It's a potential piece of evidence, one that may never make it into the official medical record, which creates a problem of its own.

The Core Risk: A Second, Unofficial Chart

Malpractice defense hinges heavily on the medical record. Juries and expert witnesses are trained to believe that if it isn't documented, it didn't happen. When clinical reasoning, differential diagnoses, or care coordination happens over text instead of in the chart, providers unintentionally create a second, informal record of the case. One that often contradicts, or simply isn't reflected in, the official one.

This is where texting becomes a real liability multiplier:

• Inconsistencies undermine credibility. If a text says "I think this could be a PE" but the chart never mentions pulmonary embolism as a consideration, plaintiff's counsel will use that gap to argue the standard of care wasn't met, or worse, that it was recognized and ignored.
• Informal language reads badly in a deposition. Clinical shorthand, abbreviations, and casual phrasing make sense in the moment, but sound dismissive or careless when read aloud in a courtroom years later, stripped of context and tone.
• Timing gaps become a timeline problem. Malpractice cases are often won or lost on timing. How quickly a provider recognized and acted on a finding. A text sent at 2:14 p.m. about a concerning result, followed by a chart note at 5:40 p.m., creates a three-hour window that opposing counsel will ask you to explain.
• After-the-event texting can add liability exposure. We often see texting between providers when they're processing or debriefing care after an unexpected outcome. Those messages can create real exposure as they might capture second-guessing, frustration, or hindsight analysis that can be misinterpreted later. It's natural to want to talk through what happened, but providers should consider engaging their organization’s risk team or other appropriate resources to facilitate constructive post-event discussions that support learning and improvement.

HIPAA and Security: A Second Layer of Exposure

Beyond the malpractice question, unsecured texting creates a separate but related risk: a HIPAA violation. Standard SMS text messages are not encrypted, and platforms like iMessage or WhatsApp, while more secure, still weren't designed for healthcare data and generally don't meet HIPAA's technical safeguard requirements on their own.

When a malpractice claim is filed, discovery often surfaces the fact that PHI was shared over a non-compliant channel. Even if the clinical content of the text was accurate and appropriate, the method of communication can become its own finding, and in some cases, its own reportable incident. Insurers and defense counsel then must manage two problems instead of one.

What This Means for Your Practice

None of this is a call to stop communicating quickly with colleagues. Fast communication saves lives, and no one is suggesting providers go back to paging and waiting by a landline. The goal is to make sure your communication habits protect you as well as they protect your patients. A few practical shifts can go a long way:

Treat clinically relevant texts as chart worthy. If a text message changes clinical thinking, confirms a plan, or documents a handoff, that information belongs in the medical record, ideally as close to real time as possible, and in your own words, not a copy-paste of the text thread.

Use a secure, HIPAA-compliant platform for any patient-related communication. Many EHR systems now include secure messaging specifically because it can auto-log into the chart and closes the documentation gap before it starts.

Assume every text could be read aloud in a courtroom. This isn't paranoia; it's a useful filter. If a message wouldn't hold up well read verbatim to a jury, it's worth rethinking the wording or moving the conversation to a documented channel.

Talk to your risk management team before it's a problem. Most providers only think about their texting habits after a claim has already been filed. By then, the messages already exist and can't be unsent.

How Curi Helps Physicians Manage This Risk

This is exactly the kind of exposure that good malpractice coverage is supposed to anticipate, not just respond to. As a physician-founded, physician-focused insurer, Curi builds risk management resources around the way medicine is actually practiced today, including the informal, fast-moving communication that happens between shifts, specialties, and care teams.

Our risk management team works directly with insured physicians and practices to review communication policies, recommend secure messaging tools, and provide training that helps providers document defensibly without slowing down patient care. And if a claim is filed, our claims professionals understand how text messages factor into a case and how to work with defense counsel to put them in proper context.

Good malpractice coverage protects you after something goes wrong. Good risk management helps make sure fewer things do. If your practice hasn't reviewed its texting and communication policies recently, it's worth a conversation with your Curi team before your next hallway consult happens over text instead.

These resources and guidance are offered for educational and risk management purposes only. This information is not medical or legal advice, does not replace independent professional judgment, does not constitute an endorsement of any kind, should not be deemed authoritative, and does not establish a standard of care in clinical settings or in courts of law. If you need legal advice, you should consult your independent/corporate counsel. We have found that using risk mitigation efforts can reduce malpractice risk; however, we do not make any guarantees that following these risk recommendations will prevent a complaint, claim, or suit from occurring, or mitigate the outcome(s) associated with any of them. The content contained herein was generated by Curi with the assistance of an AI-based system to augment the effort.

SHARE THIS POST