Documentation best defense in a malpractice action

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted July 12, 2004.

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Physicians hear over and over again that the best way to protect themselves if they are sued -- other than practicing good medicine -- is to "document, document, document." But what exactly constitutes good documentation? Here, litigator John H. Burtch, an attorney with Baker & Hostetler's Columbus, Ohio, office, tackled the issue for AMNews.

Question: Let's start with the basics: Generally speaking, how much detail should physicians include in their written records of what takes place during a patient encounter? What should never be omitted from the record? Is there ever a point where there is too much detail?

Answer: I have never been involved in a case in which the physician has recorded too much information. My rule of thumb is "the more the better."

While I don't totally subscribe to the proposition that "if it's not charted, it didn't happen," there is some truth to this adage in presenting a case in an adversarial proceeding before a jury. If the information does not appear in the chart, plaintiff's counsel always challenges the credibility and recollection of the physician.

With respect to omissions from the chart, it is my experience that physicians are particularly bad at timing their orders and entries. If there is one piece of information that is most helpful in defending medical malpractice cases, it is the time that the events recorded in the entry were performed.

For example, when did the physician make rounds and record his or her findings? When did the physician order a particular procedure or medication? Also, if the physician follows up subsequently to determine if the procedure has been performed or the medication administered, it is helpful for the physician to document his follow-up. Otherwise, plaintiff's counsel will make the claim that the physician did not follow through to see if his or her orders were followed.

Q: Has the court's expectation of what needs to be included in documentation changed in recent years? Is there a higher expectation now that a doctor can take detailed notes on a computer during an examination?

A: I have not noticed an increase in the court's expectation of the documentation in the medical record. For the most part, it appears that computer entries are made by the nursing staff, rather than the physician.

Most physician entries are handwritten except for reports of x-rays and other lab studies. With respect to reports of specialists, such as readings by radiologists of x-rays or CT scans, these formerly were dictated and then transcribed by an outside transcription service. Now those dictating can see what they are dictating on the screen in front of them. This reduces some of the transcription errors we used to see and reduces the need for a closer review of a report by the physician after transcription and before signing. I have noticed that physicians now often follow a questionnaire when making entries in the chart, and therefore, there is now less likelihood of omitting references to particular systems, signs or symptoms.

Q: Physicians know that dictations should occur quickly to accurately record what took place with a patient during an office visit, but exactly how soon should the dictation be completed? Would a court look at a dictation differently if it were recorded 30 days -- and 400 patients -- after the initial encounter?

A: No doubt -- the sooner the better. Ideally, dictation should occur immediately after the service is provided. Otherwise, an argument is always made that the entry is inaccurate (and sometimes claimed to be a fabrication) because of the passage of time. Entries that are made contemporaneously with the service and advice provided are always more credible.

Q: Can Medicare or Medicaid be billed before the dictation occurs?

A: The medical record must be accurate and complete before a claim is submitted to any payer, including Medicare and Medicaid. The dictation by the physician must be transcribed or electronically recorded to substantiate the claim upon submission. After-the-fact documentation must be clearly identified as an addendum to the medical record of later date.

Q: Should different guidelines be followed for hospital discharge summaries? They often take more time to complete, but there is a daily record and chart from which to construct the discharge summary.

A: Generally, the rule with respect to the preparation of discharge summaries is the same -- the sooner the better. However, no one really expects prompt preparation of a discharge summary because is it common practice for a resident to dictate the discharge summary after reviewing the entire chart and particularly all of the tests, specialists' reports and other items that make up the chart.

This takes time, so there is less of an expectation that the discharge summary needs to be prepared immediately. There is also a time lag between the preparation of the discharge summary by the resident and the review by the attending physician, who should sign off on the discharge summary.

Rather than timing, it is more important that the physician carefully review the discharge summary if he or she did not dictate it. Routinely signing off on the discharge summary when the physician hasn't reviewed it closely can cause serious problems down the road.

Q: Is it common for medical liability insurance companies to have set guidelines for expected documentation?

A: I believe it is common for medical insurance companies to have set guidelines, but I have little familiarity with this area.

Q: Should physicians check to see if there are laws in their states pertaining to their note-taking?

A: It is probably always a good idea to check the state law with respect to the practice of medicine; however, I am not aware of any particular provisions in Ohio law that would apply to physicians' note-taking.

Q: Any other legal concerns in this area that doctors should take note of?

A: Two areas that are problematic for physicians involve corrections to the chart and late entries.

Any time a physician changes the chart, he should do it carefully and document why he is making the changes. The appropriate procedure is to put a line through the entry, date the change and then initial the change. The physician should be prepared to justify the change in the event of litigation.

Late entries are always a problem; particularly when that entry appears in the chart after a claim has been made that the physician has failed to do something he should have done or done something he shouldn't have done. Juries often believe that late entries are simply "CYAs," and they can sometimes hurt much more than they help. It is important to explain why the late entry is being made so the physician can justify his actions in the courtroom, sometimes several years after the entry was made.

Tanya Albert amednews correspondent—

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