Vital Sounds 2026, Quarter 3
Vital Sounds 2026, Quarter 3
The Record Is No Longer Just the Chart: Portal Messages, “Tiger Texts,” and AI Notes in Malpractice Litigation
August 6, 2026
The Record Is No Longer Just the Chart: Portal Messages, “Tiger Texts,” and AI Notes in Malpractice Litigation
August 6, 2026
By Tucker Poling, JD, CPCU
Executive Vice President and General Counsel
“The palest ink is better than the best memory.” - Chinese Proverb
In the past, the “medical record” meant the chart; the one created by healthcare professionals writing or entering information into it. Today, the story of a patient’s care is scattered across patient portal threads, secure text messages between clinicians, and, increasingly, AI-generated transcripts and draft notes.
The plaintiffs’ litigation industry has noticed. Plaintiff firms instruct potential clients that texts, chats, and portal messages can be leveraged in litigation alongside the chart, the audit trail, and the metadata. Every one of these channels can be used as evidence in litigation. How you use these tools in your day-to-day clinical practice may determine whether it will be evidence that supports you or undermines you.
Portal Messages: Testimony Written in Advance
Patient portal messaging is no longer a convenience feature. It’s a routine care delivery channel. A 2026 JAMA analysis of national Epic Cosmos data found that patient-authored portal messages rose from 0.99 per patient per year in 2020 to 2.5 in 2025, an increase of more than 150%.[1] Asynchronous care is now simply care.
From a liability perspective, portal messages have three important features.
- First, they are fully discoverable in litigation and will be reviewed. A reply typed in thirty seconds between appointments will be read years later, slowly and aloud, by a plaintiff’s attorney.
- Second, portal replies are often written after hours, without a full review of the chart, and in a conversational tone that can understate clinical seriousness. This aspect can provide plaintiff attorneys fodder for narrative manipulation.
- Third, the message you do not answer can hurt as much as the one you do. As message volume grows faster than the time allocated to manage it, an unanswered patient message describing worsening symptoms can become ready-made evidence of alleged lack of attention to patient needs.
The discipline here is simple to state and not always simple to execute: if you treat every portal reply that contains clinical advice with the same care and attention you give to more “formal” chart entries, you’ll likely reduce your malpractice claim risk.
The “Secure” Nature of Approved Texting Apps Reduce HIPAA Compliance Risk, But not Necessarily Medical Malpractice Litigation Risk
In February 2024, CMS reversed its long-standing prohibition and now permits texting of patient information and even patient orders in hospitals, so long as it occurs on a secure, HIPAA-compliant platform.[2] The result is that real clinical decision-making increasingly lives in messaging channels rather than in the chart. Many clinicians refer to secure clinical texting generically as “tiger texting,” after TigerText, one commonly used messaging app (now rebranded as TigerConnect).
There are at least three distinct litigation risks associated with the increasing use of clinical messaging apps.
- The first risk is the message that disappears. These platforms typically allow administrators to configure retention, including features that automatically delete messages after a set lifespan.[3] Ephemerality cuts both ways. Automatic deletion is a legitimate data minimization and breach-reduction strategy. But courts around the country are increasingly willing to treat the destruction of messages after a claim is reasonably anticipated as spoliation[4], with sanctions that could include an instruction that the jury should assume the missing messages were unfavorable to the healthcare professional’s defense.[5]
- The second risk is the message that doesn’t disappear. The belief that these messages disappear after being read can lead clinicians into a false sense of safety that nobody will ever see them again. Often, the deleted message isn’t really deleted. The other end of the conversation may keep a copy. In recent years, screenshots of deleted app messages have been used as evidence in malpractice cases.
- The third risk is the text that contains important information that never reaches the chart. A decision communicated by text may be invisible to the rest of the care team and, years later, invisible to your defense. We’ve seen this in claims; clinically significant text exchanges that were never documented in the record, leaving the defense to reconstruct critical communications from fragments and faded memories.
AI is Now Drafting the Record
Layered on top of all of this is the fastest technology adoption I have seen in healthcare. By late 2025, nearly two-thirds of U.S. hospitals using the Epic EHR system had adopted ambient AI documentation tools that listen to the patient encounter and draft the note.[6] I wrote in these pages last year about how AI may reshape the standard of care. The documentation implications are just as concrete: the audio, the transcript, the AI’s draft, and the metadata showing what the clinician changed (or did not change) before signing may all be retained somewhere. In many jurors’ minds, the clinician who signs the note owns the note. An unreviewed AI error, signed and “approved” by you, is indistinguishable in litigation from your own error.
Risk Management Tips
- Write every message, in every channel, as though a jury will someday hear it read aloud. They might.
- Treat every portal reply as a chart entry. If the reply changes the plan of care, make sure the chart reflects it.
- If a text exchange influenced a clinical decision, summarize it in the medical record. When possible, you want the chart to tell the full story without the text thread (which may no longer exist).
- Set patient expectations about portal response times, and support triage protocols that facilitate urgent clinical messages reaching a human quickly.
- Never delete messages after an adverse event, claim, or anticipated claim, and make sure auto-deletion features are suspended the moment a claim arises.
- Review AI-drafted notes carefully before signing. Your signature may be viewed as adopting every word.
The Channels and Tools Change. The Fundamentals Do Not
Portals, secure texts, and AI scribes will not be the last new channels to carry the story of patient care, and none of them change the communication and documentation fundamentals that have decided malpractice cases for decades. Have a reason and document your reason. Communicate clearly and thoroughly with patients and your colleagues on the care team. Show genuine, human-to-human attention in your patient interactions. Document your decisions contemporaneously and honestly.
If your care comes into question in the context of a medical malpractice claim, the story of your care will be told. The question will be, who gets to tell it? Strong communication and documentation practices empower you to tell the story of your own care and help KAMMCO do what we do best: relentlessly advocate for the healthcare professionals and organizations that care for our communities.
References
[1] Mankowski M, et al., research letter analyzing Epic Cosmos national EHR data, JAMA (June 2026), as reported in MedPage Today (June 22, 2026) and Fierce Healthcare, https://www.fiercehealthcare.com/health-tech/patient-portal-messages-doubled-2020-physicians-try-balance-digital-and-clinical
[2] CMS, Memorandum QSO-24-05-Hospital/CAH, “Texting of Patient Information and Orders for Hospitals and CAHs” (Feb. 8, 2024), https://www.cms.gov/files/document/qso-24-05-hospital-cah.pdf.
[3] TigerConnect, “HIPAA Compliant Messaging Software for Healthcare” (describing configurable “Message Lifespan” and auto-deleting messages), https://tigerconnect.com/products/clinical-collaboration-platform/secure-text-messaging/
[4] “Spoliation” means the destruction or material alteration of evidence, or the failure to preserve it, when litigation is pending or reasonably anticipated. Courts can punish spoliation with monetary sanctions or, worse, an instruction telling the jury to assume the destroyed evidence was unfavorable to the party that destroyed it.
[5] See Quinn Emanuel, “Disappearing Messages, Permanent Consequences: Ephemeral Messaging in Discovery,” https://www.quinnemanuel.com/the-firm/publications/noted-with-interest-disappearing-messages-permanent-consequences-ephemeral-messaging-in-discovery/ (collecting cases under Fed. R. Civ. P. 37(e)).
[6] “Two-thirds of Epic hospitals have adopted ambient AI tools,” TechTarget, https://www.techtarget.com/searchhealthit/news/366638553/Two-thirds-of-Epic-hospitals-have-adopted-ambient-AI-tools; see also “Ambient AI Tool Adoption in US Hospitals and Associated Factors,” AJMC (2026).